FEDERAL COURT OF AUSTRALIA
FYL18 v Minister for Home Affairs [2020] FCA 200
ORDERS
Applicant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Application for leave to appeal is refused.
2. The proceeding is dismissed.
3. The Applicant is to pay the costs of the First Respondent in the sum of $3,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
FLICK J:
1 The Applicant in the present proceeding, identified by the pseudonym FYL18, was born in Fiji.
2 She arrived in Australia in December 2015 as the holder of a tourist visa. The Applicant applied for a protection visa in March 2016, but her application was found to be invalid. She thereafter, in April 2016, validly applied for a protection visa, but that application was refused by a delegate of the Minister in August 2016. In September 2016, an application for review of the delegate’s decision was filed with the Administrative Appeals Tribunal (the “Tribunal”). In October 2018, the Tribunal affirmed the delegate’s decision.
3 Review of the Tribunal’s decision was then sought by the Applicant in the Federal Circuit Court. That Court dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”): FYL18 v Minister for Home Affairs [2019] FCCA 2319.
4 An Application for leave to appeal to this Court was filed in September 2019. Leave to appeal is required because a decision pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules is an interlocutory decision (Federal Circuit Court Rules r 44.12(2)), and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal from such a decision requires leave. Leave may be granted where there is sufficient doubt as to the correctness of the decision of the primary Judge to warrant the grant of leave, and where substantial injustice would be occasioned by the refusal of leave: cf. Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139 at [4] and [5], (2010) 81 ATR 36 at 38 per Ryan, Stone and Jagot JJ.
5 The Applicant appeared unrepresented, albeit with the assistance of an interpreter; the Respondent Minister appeared by his solicitor.
6 The Application for leave to appeal is to be refused with costs.
The proposed grounds relied upon
7 The Grounds relied upon in support of the Application for leave to appeal were expressed by the Applicant (without alteration) as follows:
1. His Honour Judge Driver although was sympathetic yet failed to recognise me as a woman at risk.
2. The Tribunal as well as His Honour failed to see that I have a well founded fear of harm and my life will be at risk should I be compelled to return to Fiji.
8 And, if leave to appeal were to be granted, the Applicant sought to rely upon four proposed Grounds of Appeal. Those Grounds (without alteration) were expressed as follows:
1. I appeared before his Honour Judge Driver and I admit his kindness to listen to me but His Honour accepted the first Respondent’s written submissions.
2. I continue to believe that as a woman I have a genuine fear of harm if I return to Fiji and will be subjected to genuine fear where I will be unable to protect myself at the hand of my ex-husband as well as a woman who would have no income and would be homeless as well due to my Indo-Fijian ethnicity and Hindu religion I will suffer physically and mentally.
3. His Honour failed to take into account my personal particulars and I was denied protection in Australia contrary to my claims.
4. I hope that the honourable Court will make a different decision.
9 None of these Grounds, with respect, do anything more than invite this Court to engage in impermissible “review of the merits of an exercise of discretionary power” (cf. Minister for Immigration and Citizenship v Li [2013] HCA 18 at [66], (2013) 249 CLR 332 at 363).
10 More importantly, and if the fact that the Applicant was unrepresented is placed to one side, there is no self-evident error in the manner in which the Tribunal resolved the Applicant’s application for review on the merits, nor legal error in the manner in which the Federal Circuit Court dismissed the application for review.
11 In her written application to the delegate, the Applicant claimed that she had a “subjective well founded fear of persecution” and relied upon six reasons for that fear, those reasons ranging from her being one of the victims of Cyclone Winston, which devastated Fiji and other Pacific Islands in 2016, through to her being an “ethnic Indian in Fiji”, and her fear of physical harm because she is a “young single girl” who will be homeless, with no source of income. The delegate had also identified a claim to fear harm from her ex-husband, which was raised during the course of an interview with the Applicant. Before the Tribunal, the Applicant was asked whether she genuinely feared harm due to her ethnic background, and replied “not really” – later also reiterating this to the Tribunal. The Tribunal summarised her claims and resolved each of them. Each of the findings of fact made by the Tribunal seem to have been open to it on the materials available.
12 Before the Federal Circuit Court, the Applicant relied upon a single ground of review, expressed as follows:
Contrary to the finding of the Tribunal I do fear harm if I return to Fiji and I have a genuine fear to be exposed to serious harm because in Fiji there is no reasonable protection for women.
In the course of its ex tempore reasons, the Federal Circuit Court reviewed the claims made by the applicant and the manner in which each had been resolved by the Tribunal. When considering the sole ground of review, the Federal Circuit Court concluded in relevant part as follows:
[18] As put in the application, the single ground of review merely takes issue with the merits of the Tribunal decision. The submissions made orally by the applicant might be characterised as an asserted constructive failure of jurisdiction. However, in my view, and as I put to the applicant, no arguable case of jurisdictional error has been established. The Tribunal did have regard to each of the applicant’s claims and the available country material bearing upon an assessment of those claims.
[19] The Tribunal accepted some facts asserted by the applicant, but was not persuaded that any past incidents gave rise to a real chance or real risk of serious or significant harm in the future. In my view, those conclusions were open to the Tribunal on the information before it for the reasons it gave. I otherwise agree with the Minister’s submissions on the ground of review advanced.
[20] To the extent that the ground could be read as a contention that the Tribunal failed to adequately engage with the applicant’s claim to fear harm as a woman in Fiji, the Tribunal’s decision, read fairly and as a whole, reveals that it adequately considered the applicant’s claims as raised in her protection visa application and at the interview before the delegate, and made findings of fact that were open to it.
Irrespective of the manner in which the proposed Grounds of Appeal have been expressed by the Applicant in her Application for leave to appeal, the reasons provided by the Federal Circuit Court do not expose any serious question warranting the granting of leave.
CONCLUSIONS
13 The Application for leave to appeal should be refused. No error is self-evident in the reasons of the Federal Circuit Court. Nor is there sufficient doubt as to the correctness of the decision to warrant the grant of leave, and no substantial injustice is occasioned by the refusal of leave.
14 The Respondent Minister also sought an order for costs in the sum of $3,000. Although there was no affidavit as to the reasonableness of such an amount, the solicitor appearing relied upon Item 15.2 to Sch 3 of the Federal Court Rules 2011 (Cth). That item provided for a “short form bill” for an amount of $7,241 in the event that an “application is discontinued … after hearing…”. In such circumstances an order for the payment of $3,000 is considered fair and reasonable. Griffiths J, it may be noted, has adopted a similar course in BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29] to [30].
THE ORDERS OF THE COURT ARE:
1. The Application for leave to appeal is refused.
2. The proceeding is dismissed.
3. The Applicant is to pay the costs of the First Respondent in the sum of $3,000.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. |
