FEDERAL COURT OF AUSTRALIA

AID16 v Minister for Immigration and Border Protection [2020] FCA 118

ORDERS

THE COURT ORDERS THAT:

1.    The appellants have leave to rely on grounds 1 to 4 in the document titled “Second Amended Appeal”.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from the orders of the Federal Circuit Court of Australia made on 16 February 2017, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 20 January 2016. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the appellants protection visas.

2    The notice of appeal was filed on 3 March 2017 at a time when the appellants were not legally represented. On 25 September 2017, a proposed amended notice of appeal was provided to the Minister and the Court. On 24 April 2018, a document titled “second amended appeal” was signed by Counsel for the appellants. It stated 6 grounds of appeal. The fifth ground concerned a s 438 notice given by the Department to the Tribunal on 6 November 2014.

3    The hearing of the appeal was listed for 16 May 2018. The appellants filed written submissions in advance of the hearing on 1 May 2018 addressing the proposed grounds of appeal, including the fifth ground concerning the s 438 notice. On 9 May 2018, the Minister filed his written submissions in response. On 11 May 2018, the Court made orders adjourning the hearing of the appeal pending the outcome of appeals to the High Court in cases named CQZ15 and BEG15. The appeals to the High Court concerned the question whether the giving of a notice under s 438 of the Act to the Tribunal triggered an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. The High Court delivered judgment on those appeals, and a further case named SZMTA, on 13 February 2019: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA).

4    The appeal was relisted for hearing on 28 August 2019. At the hearing, Counsel for the appellants informed the Court that, in light of the decision in SZMTA, the appellants did not press the fifth ground of appeal concerning the s 438 notice, and also did not press the sixth ground of appeal. As a result, it is not necessary to refer to the s 438 notice or the documents referred to in that notice.

5    The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the primary judge was correct to find that the decision of the Tribunal was not affected by jurisdictional error as alleged: Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1.

6    For the reasons that follow, I have reached the same decision as the primary judge that the Tribunal’s decision is not affected by jurisdictional error as alleged.

Background

7    The proceeding has a lengthy background.

8    The appellants are citizens of Fiji. The first appellant (to whom I will refer as the appellant father) last arrived in Australia on 13 October 2004 on a Short Stay Business visa. The second appellant (to whom I will refer as the appellant mother) is his wife, and the third appellant (born 1995) (to whom I will refer as the appellant children) are their children. The appellant father and mother have two other children, twins born in 2006, who were parties to the proceedings before the Federal Circuit Court (to whom I will refer as the non-appellant children). They are not parties to the present appeal.

9    The appellant mother lodged an application for a protection visa in December 2004, and the appellant father and the third appellant were listed as dependents. The application was refused and that decision was affirmed by the Refugee Review Tribunal (as it then was). The appellants sought judicial review in relation to the decision.

10    The non-appellant children also made separate applications for protection visas on 30 July 2008. The applications were refused and the decision was affirmed by the Refugee Review Tribunal.

11    On 5 December 2012, the appellant father lodged another protection visa application which is the subject of the present appeal. The appellant mother and child were included as members of the same family unit. In broad terms, the appellant father’s claims included the following:

(a)    He actively supported the Soqosoqo Duavata ni Lewenivanua (SDL) political party when he was in Fiji. He left Fiji in 2004 because he felt a military coup was imminent.

(b)    He continued to support the SDL when he arrived in Australia by forming the Griffith branch of the SDL. He is also a founding member of the Fijian Democracy Freedom Movement (FDFM).

(c)    In Australia, he made various media statements condemning the military coup and attended demonstrations and protests against the military regime.

(d)    When he was in Fiji, he saw the mutilated bodies of soldiers in a freezer container. He also witnessed the torture of one of his colleagues. He was ordered to lie down at gunpoint when he was in charge of a logistic team that supported the military.

(e)    He will be tortured and killed in Fiji because of his continuing support for the SDL.

12    On 1 September 2014, a delegate of the Minister refused the application.

13    On 9 September 2014, the appellants applied for review of the delegate’s decision by the Tribunal. The Tribunal held hearings on 22 October 2015 and 7 January 2016 and gave its reasons for affirming the delegate’s decision on 20 January 2016.

14    On 15 February 2016, the appellants filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision. On 16 February 2017, the primary judge dismissed the application.

Tribunal decision

15    The Tribunal recorded the appellant father’s claims at [19] to [21] under the subtitle “Initial claims, supporting statement and submissions”:

19. The application forms lodged by the applicant with the Department for the Protection visa make the following claims. The applicant left Fiji in 2004 because it was clear that a coup was imminent. The applicant fears harm on the basis of his membership of the SDL political party (Soqosoqo Duavata ni Lewenivanua). The applicant referred to seeing mutilated bodies of soldiers in a freezer container the day the police took over from the military at the Colonial War Memorial Hospital grounds. The applicant witnessed colleagues being tortured by the military near his government quarters. The applicant was ordered to lie down at gunpoint and threatened to be shot while in charge of a logistic team that worked to support the military.

20. The applicant's involvement in the SDL continued when he was in Australia where the applicant formed a branch in Griffith. In Australia, the applicant made media statements and radio interviews expressing his views and criticism of the Fiji dictatorship. The applicant was among protesters whose photos were captured on blog sites following a protest march in Canberra by the Fiji Democracy and Freedom Movement (FDFM). Reference is made to a meeting at the Belmore Bowling club, newspaper interviews and photos in the Griffith news.

21. The applicant believes that he will be arrested, tortured and physically harmed due to his stand against the illegal regime.

16    The Tribunal then listed the evidence before it.

17    At [31] to [34], the Tribunal summarised independent country information concerning Fiji that was available to it. The information largely concerned the treatment of political opponents by the Fijian government.

18    At [37] to [94], the Tribunal set out in considerable detail the evidence and submissions on behalf of the appellant father.

19    Commencing at [95], the Tribunal set out its assessment of the appellant father’s credibility and the Tribunal’s findings with respect to his claims. At [95], the Tribunal recorded that the appellant father had admitted that false claims were made as part of the appellant mother’s 2004 protection visa application, which the Tribunal said undermined his credibility. At [96], the Tribunal also noted that the appellant father made claims of harm in the 2008 protection visa applications that were no longer maintained. Despite that, and save in one respect, the Tribunal largely accepted the evidence of the appellant father concerning his political activities in Australia. The Tribunal found (at [97]):

… the evidence as to the applicant's political and community activities in Australia is mostly clear. The Tribunal is satisfied that the applicant founded a sub-branch of the SDL in Griffith. The Tribunal is satisfied that the applicant has had long-standing involvement with the FDFM and was their representative in Griffith. The Tribunal is satisfied that the applicant was Fijian Community President in Griffith from 2006 until 2010. In that capacity, the Tribunal is satisfied that he made statements on ABC radio and in local Griffith media critical of the regime in Fiji. The Tribunal is satisfied that, in 2010, reference is made in the Fiji Times Online to the applicant as the attendee at a protest concerning a Fijian man who died in detention in Australia. The Tribunal is satisfied that the applicant has been involved in organising protests against the regime and government in Fiji. The Tribunal is satisfied that the applicant has attended protests, including in Canberra and Sydney. This includes a protest when Bainimarama visited Australia. The Tribunal is satisfied that the applicant has undertaken fundraising, including for the former Fijian Prime Minister Mr Qarase. The Tribunal is satisfied that the applicant has been involved in organising Fijian community events in Griffith.

20    At [98], the Tribunal stated that it did not accept the appellant father’s claim that he was warned through a third party that he would be harmed if he returned to Fiji.

21    At [99], the Tribunal expressed the following factual finding about the appellant father:

The Tribunal is satisfied, if he returned to Fiji, that the applicant would join SODELPA and would seek to be involved in politics in (sic) to a degree similar to his involvement in Australia. The Tribunal would categorise the applicant as being a mid-level political operative with a reasonable profile at a local level. Given that Griffith is a centre of expat Fijians, that the applicant is prominent locally, and the past sensitivity of the Bainimarama regime to criticism, the Tribunal considers that the applicant may well have been known to the regime and would continue to be known to the current government.

22    At [100], the Tribunal stated that the issue before it is whether, given the appellant father’s profile, he faces a real chance of serious harm or a real risk of significant harm on return to Fiji. At [101], the Tribunal stated that it gives weight to the DFAT assessment that there is now much greater freedom in Fiji in terms of expressing opposing political views and that it is reported that robust criticism of the governing party occurs. The Tribunal noted that DFAT assesses that those at risk are high-profile public figures, including the leaders of organisations and DFAT assessed that senior members of political parties are at a moderate risk of being monitored and intimidated and a low risk of being detained or otherwise harassed. At [102], the Tribunal stated that it assessed that the appellant father, on return to Fiji, would be a mid-level operative and would be perceived similarly in terms of his activities in Australia. The Tribunal did not consider that the appellant father would be considered a high-profile public figure, a leader of an organisation, or a senior member of a political party. The Tribunal stated that, to that extent, it did not consider that the appellant father would fall within the risk profile identified by DFAT.

23    The Tribunal summarised its conclusions with respect to the appellant father as follows:

128. The Tribunal considers the applicant's circumstances cumulatively. It assesses his longstanding involvement as an organiser of anti-regime activity in Australia, including with the SDL and the FDFM, principally in Griffith. It assesses the fact that the applicant has been a leader of the Fijian community in Griffith. It assesses the fact that up until 2010 the applicant was quoted in the Griffith media criticising the regime in Fiji, and there is one article published online in Fiji containing criticism by the applicant. It assesses the fact that the applicant has connections with higher profile individuals in Australia involved in anti-regime and anti-government advocacy. It assesses the fact that the applicant has had a degree of interaction with Ms Kerwin (sic), who is known to the government in Fiji to be a separatist and that Bainimarama has signalled that separatists will suffer the full force of the law. It assesses the fact that the applicant has some sympathy for the separatist cause but has had no specific involvement in the cause. It assesses the fact that the applicant will be politicly (sic) involved on return to Fiji advocating for a democratic change of government.

129. The Tribunal does accept that the situation in Fiji is far from perfect. There remain strident security laws, restrictions on assembly and laws which provide impunity to military and police. However, despite the problems that such measures present, they do not alter the fact that democratic political opposition is currently tolerated in Fiji and that the weight of independent evidence does not support the position that the applicant, as a mid-level democratic activist, would face harm. The Tribunal notes there is very limited recent independent evidence of individuals being targeted for arbitrary detention or physical harm as a result of the expression of lawful political opposition to the government.

130. In particular, the Tribunal has carefully considered the applicant's links to Ms Kirwan (sic) and whether this, in combination with his other political activities, leads to the requisite risk. The Tribunal is not satisfied of this, in the absence of the applicant having undertaken any actual involvement in the separatist movement, or being a member of the movement, and that his interaction with Ms Kirwin has been reasonably sporadic. The Tribunal does not consider his general support for what Ms Kirwin has done establishes the requisite risk or that he would be an active supporter of this cause if he returned to Fiji.

131. Considering all matters cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or is (sic) that he is at a real risk of significant harm for the reasons claimed today or in the reasonably foreseeable future. It follows that the Tribunal does not consider that the other applicants would be at such risk by association.

…

135. In relation to the applicant's claims under the Refugees Convention criterion, the Tribunal is not satisfied that there is a well-founded fear that he will be persecuted for a Convention reason due to his political activity against either the Fijian military regime or the current government in either Australia or Fiji, his political associations, his sympathy for the separatist cause, a perception of the applicant advocating sedition, his association with Ms Kirwin, or for any other reason. In terms of the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk he will suffer significant harm due to his political activity against either the Fijian military regime or the current government in either Australia or Fiji, his political associations, his sympathy of the separatist cause, a perception of the applicant advocating sedition, his association with Ms Kirwin, or for any other reason, for the reasons outlined above.

Federal Circuit Court decision

24    On 15 February 2016, the appellants lodged an application and accompanying affidavit in the Federal Circuit Court, seeking judicial review of the Tribunal’s decision under s 476 of the Act. Subject to various exceptions (which are not presently applicable), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

25    To constitute jurisdictional error, the error must comprise a failure to comply with a statutory precondition which must exist in order for the decision-maker to embark on the decision-making process or a failure to comply with a condition which the statute expressly or impliedly requires to be observed in the decision-making process, and the error must ordinarily be material in the sense that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at [29]-[30] per Kiefel CJ, Gageler and Keane JJ; SZMTA at [45] per Bell, Gageler and Keane JJ. Such errors can include identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material, failing to observe an applicable requirement of procedural fairness or, in certain circumstances, making an erroneous factual finding: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]; Hossain at 70.

26    In the Federal Circuit Court, the appellants were not legally represented and appeared in person with the assistance of an interpreter. The three grounds on which the appellant sought review of the decision of the Tribunal in the Federal Circuit Court were somewhat formulaic and alleged a denial of procedural fairness, unreasonableness and a failure to request information. Each was dismissed by the primary judge. It is unnecessary to refer further to the grounds of review before the primary judge or the reasons of the primary judge because the appellants raised entirely new grounds on appeal to the Federal Court.

Grounds of appeal

27    An appeal to the Federal Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is by way of rehearing. Nevertheless, it is necessary to show error (whether of fact or law) in the primary decision: Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1 at [26]. As observed by Katzmann J in SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 at [21], an appeal from a decision of the Federal Circuit Court “is an appeal by way of rehearing but a rehearing is not a new hearing”.

28    As stated earlier, the notice of appeal in this Court was filed at a time when the appellants were not legally represented. The grounds of appeal in that notice reflected the grounds of review raised before the Federal Circuit Court.

29    At the hearing of the appeal, however, the appellants sought leave to rely on grounds of appeal set out in a document titled “Second Amended Appeal”, signed by their Counsel. The grounds of appeal were as follows (excluding grounds 5 and 6 which were not pressed by the appellants) (errors in original):

(1)     The learned primary judge erred by not finding that (a) the Tribunal dealt with a claim different to the claim made by the applicant and/or (b) Asked itself a wrong question

    Particulars

(a)     The appellant's case is that all the anti-regime activities he has undertaken in the past in Australia considered cumulatively, by themselves would result in the Fijian Regime wanting to seriously harm the appellant if he returns to Fiji;

(b)     His case is not that he will be harmed either for the type of profile he may acquire in future in Fiji or whatever political activities that he may undertake in Fiji in the future; and

(c)     The Tribunal asked whether the appellant would be a high-profile opponent of the Regime in Fiji.

(d)     At [108] (Tab 2 AB 582) the Tribunal stated that "The Tribunal takes the DFAT assessment at face value, namely that the risk is to higher profile individuals and the applicant is not one of them".

(e)    DFAT assessment was focused on the profile of the regime's opponent in Fiji and not in Australia.

(2)     The learned primary judge erred by failing to find that the Tribunal made an arbitrary finding which is critical to the appellant's case, that is that he was a mid-level activist in Australia.

    Particulars

(i)     The appellant was the leading critic in Australia of the Fijian regime since his arrival in Australia and thus he had a high profile;

(ii)     The appellant's condemnation of the Regime gave him profile higher than others and thus a high profile;

(iii)     The Tribunal failed to distinguish between someone being of high profile in Fiji and being high profile in Australia as an opponent of the Bainimarama Regime;

(iv)     The Tribunal failed to state the criteria it used to find that the appellant is a mid-level activist whereas the appellant was the leading activist or at least one of the handful of leading activists;

(v)     The appellant was blunt and vocal and was the leader in criticising the Regime directly and Mr. Bainimarama personally in various forms of media;

(vi)     The appellant was fearless in his criticism of the Bainimarama Regime;

(vii)     The appellant at one stage spearheaded the opposition to the regime in Australia which resulted in the formation of FDFM, the leading anti-regime movement in Australia.

(3)    The learned primary judge failed to find that the Tribunal made jurisdictional error in finding that when the appellant's circumstances are considered cumulatively there is real chance of persecution if he returns to Fiji

    Particulars

(i)     Although at [128](Tab 2 AB 585) the Tribunal stated that it looked at the appellant's case cumulatively it didn't really do so since there is no indication how it carried out this complex task and also there is no comparison of his cumulative activities with the cumulative activities of any other so called 'high profile' individuals if there were any.

(ii)     Had the Tribunal actually considered the circumstances of the appellant cumulatively it would have been obvious that it involved opposition to the Fijian Regime in many diverse ways as to make his case unique and thus high level of threat to him if he returns to Fiji.

(iii)     Rather than considering his case overall it tried to fit him within a category or formula "high profile", "medium profile", "high-level", "mid-level" etc. At [108] the Tribunal stated that "The Tribunal takes the DFAT assessment at face value, namely that the risk is to higher profile individuals and the applicant is not one of them".

(4)    The learned primary Judge erred by not finding that it was not open to the Tribunal to find that the appellant was a mid-level political operator in Australia and that it should have found him to be a high profile political operator

    Particulars [102] [108] [101] [97] (Tab 2 AB581-582)

(i)     The appellant's vocal opposition to the Bainimarama Regime was unmatched by anyone else (except Ms Kirwin in relation to Sedition);

(ii)     The appellant's role in setting up the SDL branch in Griffith;

(iii)     The appellant's role in establishing FDFM;

(iv)     Burning of the Constitution;

(v)     He personally criticised Mr. Bainimarama;

(vi)     His role with regards to Mr. Qarase's and Madame Kepa's visit to Griffith in 2015;

(vii)     Fundraising for Mr. Qarase;

(viii)     Overall leadership role within Australia about opposition to the Fijian Regime.

30    It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial, and new issues not raised for the first time on appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7. Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being differently conducted: Water Board v Moustakas (1988) 180 CLR 491 at 497. This Court has recognised that special circumstances frequently arise in immigration cases. The usual approach of the Court in such cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

31    The applicable principles were recently discussed by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [35] – [38].

32    Although, for the reasons explained below, I have come to the conclusion that the new grounds of appeal cannot be sustained and the appeal should be dismissed, I grant leave to the appellants to rely on the grounds stated in Second Amended Appeal.

Ground 1

Appellants’ submissions

33    The appellants submitted that the appellant father had claimed in his application for protection that the anti-regime activities he has undertaken in the past in Australia, considered cumulatively, by themselves would result in the Fijian regime wanting to seriously harm him if he returns to Fiji. His case is not that he will be harmed either for the type of profile he had when he was in Fiji or that a profile he may acquire in future in Fiji or whatever political activities that he may undertake in Fiji in the future.

34    The appellants argued that the Tribunal failed to consider that claim and thereby failed to exercise jurisdiction, relying on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 (Dranichnikov) at [22]-[24], [27] per Gummow and Callinan JJ, [88]-[89] per Kirby J and [95] per Hayne J; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[61] per Black CJ, French and Selway JJ.

35    The appellants acknowledged that the Tribunal had accurately summarised the appellant father’s claims at [20] and [21] of its reasons. However, the appellants argued that the Tribunal then asked itself the wrong question. Instead of asking, “Whether all the anti-regime activities he had undertaken cumulatively since his arrival in Australia will cause him to be persecuted?”, the Tribunal asked “Does he have a high profile in Australia or will he acquire a high profile in Fiji?”. The appellants submitted that the Tribunal’s focus was to assess the profile that the appellant father would be likely to acquire in Fiji rather than looking at the cumulative effect of his anti­regime activities in Australia at the point of entry to Fiji and the time immediately after entry to Fiji. The appellants argued that the approach adopted by the Tribunal involved the following errors:

(a)    First, the DFAT country information about Fiji relied on by the Tribunal was not relevant because the country information considered the risk to someone behaving in a particular way in Fiji and not someone behaving in a certain way in Australia.

(b)    Second, potential persecution was linked in the DFAT country information to high-profile persons in Fiji and there is no proper link between how one’s profile in Australia would translate to their profile in Fiji.

(c)    Third, the appellant father’s multifaceted involvement in Australia is unique and does not lend itself to comparison to any other individual in Australia or enable him to be described in terms of a particular profile.

(d)    Fourth, there was no evidence before the Tribunal that anybody else criticised the Fijian regime to the level that the appellant father had done so.

36    The appellants submitted that the Tribunal erred in finding (at [61] of its reasons) that the appellant father’s migration agent agreed during the hearing that the appellant father would be considered a mid-level political operative. The appellants contended that the transcript of the hearing shows that the agent did not fully agree with that proposition.

Minister’s submissions

37    The Minister submitted that the Tribunal did not misunderstand or fail to consider whether all anti-regime activities undertaken by the appellant father since his arrival in Australia, considered cumulatively, would cause him to be persecuted, as was shown by the Tribunal’s reasons at [128] and [130]-[131].

38    The Minister submitted that the Tribunal did not ask itself the wrong question. The Tribunal considered the appellant father’s profile because there was independent country information which suggested that:

(a)    those at risk of harm in Fiji are high-profile public figures including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy;

(b)    senior members of opposition parties (i.e. those running for office) are at a moderate risk of being monitored and intimidated by security services and are at a low risk of being arbitrarily detained or otherwise harassed, and the leaders of opposition political parties are at a moderate risk of being harassed; and

(c)    Bainimarama claimed that “high-profile” figures in Australia were plotting to bring down his government and that these figures would be “tracked down and brought to justice”.

Consideration

39    I accept the submissions of the Minister and reject those of the appellants. The Tribunal did not address the wrong question, or fail to address a relevant question.

40    The claim made by the appellant father was that he faces the risk of harm if returned to Fiji by reason of his political activities in Australia. The Tribunal recorded those claims and it is clear from the Tribunal’s reasons that it understood the claims. The relevant question was whether the political activities of the appellant father in Australia caused a risk of harm if he returns to Fiji. In answering that question, the Tribunal considered the available country information concerning harassment and persecution of political opponents of the Fijian government. Relevant DFAT reports stated that public commentary on political issues, including criticism of government policies, is permitted and occurs regularly, but DFAT assesses that high-profile public figures are at risk, including leaders of organisations who might be seen to challenge the government’s authority or undermine its legitimacy. Ultimately, the Tribunal concluded that the political activities of the appellant father in Australia did not place him in a category of persons who, according to country information, faced a risk of harm or persecution in Fiji. In explaining that conclusion, the Tribunal described the appellant father as a “mid-level” political operator. The expression is not a term of art. It is a descriptive term used by the Tribunal to explain that the appellant father’s activities did not make him a high-profile figure likely to face a risk of harm. For those reasons, the Tribunal did not address the wrong question.

41    I also reject the appellants’ further submission concerning the Tribunal’s finding (at [61] of its reasons) that the migration agent agreed during the hearing that the appellant father would be considered a mid-level political operative. Counsel for the appellants took me to a transcript of the hearing before the Tribunal. Having considered the transcript, I discern no error in the Tribunal’s finding. The transcript shows that the migration agent qualified her agreement with a further submission that it was relevant to consider the appellant father’s long-standing association with high-profile political people. However, that further submission was also recorded by the Tribunal (at [61] of its reasons). Further, I do not consider that the finding about which complaint is made was material to the Tribunal’s decision. It is clear that the Tribunal formed its own assessment of how the appellant father would be likely to be perceived in Fiji if he returned based on the evidence before it, and the Tribunal did not rely on the submission of the migration agent.

42    I also reject the appellants’ submissions that the appellant father’s position was unique and that the DFAT assessment was not able to be applied to him. In my view, the submissions were a criticism of the merits of the Tribunal’s decision and the assessment it made of the evidence before it. For the reasons already explained, the Tribunal had regard to the DFAT information in order to assess whether the appellant father would be at risk of harm in Fiji by reason of his political activities. In my view, the DFAT information was relevant to that question and there was no jurisdictional error in the Tribunal having regard to that information and drawing conclusions from it.

Grounds 2 and 4

Appellants’ submissions

43    In their written and oral submissions, the appellants addressed grounds 2 and 4 collectively. While expressed differently, the grounds essentially allege the same error. The complaint in ground 2 is that the Tribunal made an arbitrary finding, which was critical to the appellant father’s case, that he was a mid-level activist in Australia. The complaint in ground 4 is that it was not open to the Tribunal to find that the appellant father was a mid-level political operator in Australia and that it should have found him to be a high-profile political operator.

44    In contending that the Tribunal’s finding was “arbitrary” or “not open”, the appellants submitted that the finding was illogical or irrational, having regard to the evidence before the Tribunal and the primary findings made. The appellants did not contend that the Tribunal failed to take into account any evidence, and did not challenge any of the primary findings made on the basis of the evidence. Rather, the appellants argued that the primary findings could not support the finding that the appellant father was a mid-level political operator, and the process of reasoning that led to that finding was not explained in the decision.

Minister’s submissions

45    The Minister submitted that a claim of illogicality or irrationality can only be made out if it can be demonstrated that the Tribunal formed a view that no rational or logical decision-maker could have arrived at on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be shown: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60]-[61], citing Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52], [54]-[56]; 69 AAR 210. The correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it: Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [61] per Griffiths and Moshinsky JJ.

46    The Minister further submitted that, in conducting a review, the Tribunal may get any information that it considers relevant, and the weight that it gives such information is a matter for the Tribunal as part of its fact finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].

47    The Minister submitted that, in this case, the Tribunal provided clear and comprehensive reasons for finding that the appellant father was not “high-profile”, with reference to the appellant’s own evidence and submissions and country information as to what constitutes “high level” in Fiji. It cannot be said that the Tribunal’s reasoning was illogical or irrational.

Consideration

48    I accept the submissions of the Minister and reject the submissions of the appellants.

49    Ultimately, the appellant’s submission rose no higher than an assertion that the evidence concerning the political activities of the appellant father could not support a conclusion that he was a mid-level political operator. No error was identified in the Tribunal’s statement of the evidence or findings of fact. The appellants criticised the Tribunal’s ultimate characterisation of the evidence.

50    As noted earlier, the expression “mid-level” political operator, as used by the Tribunal, is not a term of art. It is a descriptive term used by the Tribunal to explain that the appellant father’s activities did not make him a high-profile figure likely to face a risk of harm. The finding reflected the Tribunal’s overall assessment of the political activities that had been engaged in by the appellant father while in Australia, about which the Tribunal made detailed findings. In my view, the Tribunal’s finding was open to it. The appellants’ submission that the Tribunal’s finding was arbitrary was no more than an expression of emphatic disagreement with that finding: Re Minister for Immigration and Multicultural Affairs; ex parte applicant S20/2002 (2003) 73 ALD 1 at [5] per Gleeson CJ. The appellant failed to show that the description lacked a rational basis.

Ground 3

Appellants’ submissions

51    In respect of ground 3, the appellants submitted that, although the Tribunal stated that it looked at the appellant father’s case cumulatively (at [128]), it had failed to do so because there was no indication how the Tribunal carried out the complex task, and there was no comparison of the appellant father’s cumulative activities with the cumulative activities of any other so called “high-profile” individuals, if there were any.

52    The appellants argued that, had the Tribunal actually considered the circumstances of the appellant father cumulatively, it would have found that his activities involved opposition to the Fijian regime in many diverse ways as to make his case unique and cause him a high level of threat if he returns to Fiji. The appellants argued that, rather than considering his case overall, the Tribunal tried to fit him within a category or formula “high-profile”, “medium-profile”, “high-level”, “mid-level”.

Minister’s submissions

53    The Minister accepted the proposition, stated broadly, that there is an obligation to consider the parts of an applicant’s claim for protection cumulatively. The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the whole of the case before him or her: Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 at [31].

54    The Minister submitted that, in this case, the Tribunal expressly stated that it had considered the appellant father’s claims cumulatively (at [128], [130]-[131]). This is not a case where the Tribunal impermissibly considered each claim individually and in isolation. The Tribunal’s reasons show that it was aware of the ways in which the different parts of the claims might interact. Especially when combined with the Tribunal’s later, express statements that the Tribunal had considered the appellant father’s claims cumulatively, the discussion in these paragraphs was sufficient to demonstrate that the Tribunal had understood its duty to consider the claims cumulatively and had in fact done so.

Consideration

55    Again, I accept the submissions of the Minister and reject the submissions of the appellants.

56    In my view, the appellants’ submissions express no more than disagreement with the ultimate conclusion of the Tribunal. At [128] and following, the Tribunal not only stated that it was considering the claims of the appellant father cumulatively, but the following paragraphs demonstrate that the Tribunal did so. The appellants submitted that the Tribunal did not do enough to explain its reasoning process. I disagree. The Tribunal explained its factual findings in considerable detail and expressed its process of reasoning and conclusion based on those facts.

Conclusion

57    In my view, the grounds of appeal do not identify any jurisdictional error on the part of the Tribunal. The appeal should be dismissed with costs.

Associate:

Dated:    14 February 2020