FEDERAL COURT OF AUSTRALIA

AAY17 v Minister for Immigration and Border Protection [2019] FCA 2017

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s notice of appeal filed 20 March 2019 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

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

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 18 March 2019 (AAY17 v Minister for Immigration & Anor [2019] FCCA 743 (AAY17)). In that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision affirmed a decision of a delegate of the Minister not to grant the appellant’s application for a protection visa.

2    The appellant is a citizen of Zambia who arrived in Australia on 23 October 2013. She claimed to fear harm in Zambia because she is bisexual and because she escaped custody, following her detention for involvement with a Lesbian, Gay, Bisexual and Transgender (LGBT) group in Zambia. The claims the appellant advanced in support of her application are set out in some detail in the Tribunal’s decision (at [4] and [9]–[24]). It is not necessary to repeat those matters here.

3    As I have already mentioned, the Tribunal affirmed the delegate’s decision. In short, the Tribunal did that because it did not believe the appellant. The primary judge summarised the pertinent aspects of the Tribunal’s decision at [3]–[7] of his reasons for judgment. Before concluding that summary, the primary judge said (AAY17 at [6]):

… The Tribunal found that the [appellant] was not involved in the LGBT group and, thus, did not accept that the [appellant] had been arrested or had escaped arrest … The Tribunal also did not accept that the [appellant] was of interest to the police before departing Zambia because the [appellant] was able to receive a police clearance before doing so …

4    The primary judge summarised the grounds of review in the appellant’s review application before him in the following terms (AAY17 at [8]):

[It] constituted assertions that the factual findings of the Tribunal were wrong to the extent that the [appellant] sought to invite the Court to conduct a merits review of the factual decisions of the Tribunal …

5    Nonetheless, the primary judge turned to consider the Tribunal’s treatment of the appellant’s claims. He concluded (AAY17 at [9]) that the Tribunal had “closely examined each of the claims made by the [appellant] and addressed each of those claims before arriving at its decision”.

6    With respect to the s 438 certificate, the primary judge noted (AAY17 at [10]–[11]) that the Tribunal had made proper use of that certificate. And with respect to the Tribunal’s compliance with s 424AA of the Migration Act 1958 (Cth), the primary judge concluded (AAY17 at [11]):

In the absence of any transcript evidence filed by or on behalf of the [appellant], it is inferred that the Tribunal correctly complied with the procedure set out in section 424AA of the Act …

(Footnote omitted)

7    On the question of legal unreasonableness, the primary judge noted (AAY17 at [12]–[13]) that the Tribunal had closely examined each and every aspect of the appellant’s claims and that it could not be “said that no other rational or logical decision-maker could not have made the same decision as the … Tribunal”. He also added that the Tribunal’s decision was not one “lacking an evident and intelligible justification”. Accordingly, the primary judge concluded (AAY17 at [14]) that there was no jurisdictional error in the Tribunal’s decision.

8    The notice of appeal before this Court sets out two grounds of appeal as follows:

1.    I made the judge aware of the jurisdictional errors and how the Tribunal affirmed their decision based on those factors/jurisdictional errors. But the Federal Circuit Court made no comment, did not discuss or act on them.

2.    All the judge did was read from the notes he got from the Tribunal regarding their decision and then he dismissed my case and ordered me to pay a fee.

9    In the orders sought, the appellant asked “to have [her] case reheard or reassessed by the Tribunal with fresh eyes and ears”.

10    Neither of these grounds of appeal is particularised in a way that identifies the error that is said to have been made by the primary judge. The appellant has not filed any written submissions in support of this appeal. In her oral submissions at the hearing today she broadly claimed that the Tribunal’s decision was unfair because it took account of matters that were irrelevant.

11    In his oral submissions in response, the Minister’s lawyer was content to treat this as a claim that the Tribunal had acted with legal unreasonableness in the sense that its decision was illogical or irrational. The Minister’s lawyer addressed four matters raised by the appellant, namely the Tribunal’s findings about the genuineness of the documents submitted, the lack of media coverage, her immigration status and her misuse of gender pronouns when referring to her cousin.

12    Without reviewing each of these matters in detail, I am satisfied that there was an evidentiary foundation for each of them. Moreover, I am satisfied that there was no lack of logic or rationality in the decision, as explained in the two decisions referred to in the primary judge’s decision, namely Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16.

13    Instead, I agree with the primary judge that the appellant is, essentially, attempting to achieve a merits review of the Tribunal’s decision, which is not the role of the Federal Circuit Court, in a judicial review application of this kind. I do not, therefore, consider that the appellant has established that the primary judge’s judgment is affected by an appellable error. Her appeal must, therefore, be dismissed.

14    The orders I make are:

1.    The appellant’s notice of appeal filed 20 March 2019 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

Associate:    

Dated:    13 December 2019