FEDERAL COURT OF AUSTRALIA

DDJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 728

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal be dismissed.

2.    The applicant pay the costs of the first respondent as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    These reasons for judgment concern an application for leave to appeal against orders made by the Federal Circuit Court of Australia (the Federal Circuit Court) on 14 November 2019 dismissing the applicant’s application for judicial review of a decision of the second respondent (the Tribunal): DDJ17 v Minister for Immigration & Anor [2019] FCCA 3292. The Tribunal had affirmed the decision of the delegate of the first respondent (the Minister) to refuse the grant of a protection visa.

2    The Federal Circuit Court dismissed the applicant’s application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules). Such a decision is interlocutory, as provided for in r 44.12(2) of the Federal Circuit Court Rules, and accordingly the applicant requires leave to appeal from the orders of the Federal Circuit Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

3    The applicant submitted in his written submissions that it was appropriate for the question of leave to appeal and the substantive appeal to be considered and dealt with concurrently. As the Minister stated in his written submissions, whether to grant leave to appeal involves a discrete and preliminary question. Further, the directions issued by this Court on 26 November 2019 pre-suppose that the application for leave to appeal will be heard separately from the substantive appeal. Accordingly, these reasons for judgment concern only the applicant’s application for leave to appeal.

4    For the reasons that follow I have concluded that the application for leave to appeal must be dismissed with costs.

Background

5    The procedural background is set out at [2]-[9] of the Federal Circuit Court decision. Relevantly, the applicant arrived in Australia in April 2016 on a tourist visa at the age of 15. On 22 November 2016, the applicant was apprehended and interviewed by compliance officers (the Compliance Interview). On 9 January 2017, the applicant applied for a protection visa. That application was refused by a delegate of the Minister on 8 March 2017. The applicant then sought review of the delegate’s decision and on 9 June 2017 the Tribunal affirmed the decision under review. That decision was set aside by orders of the Federal Circuit Court and the Tribunal reheard the applicant’s application on 8 March 2019. On 4 April 2019, the Tribunal again affirmed the decision under review. On 14 November 2019, the Federal Circuit Court dismissed the applicant’s application for judicial review affirming the decision under review.

The new ground of review

6    In his oral submissions the applicant confirmed that he had abandoned the grounds listed in his application for leave to appeal filed on 25 November 2019. Instead, the applicant stated that he sought to rely upon the only ground stated in the interlocutory application filed on 12 May 2020 which reads as follows (the New Ground):

The Court below erred in failing to find that the decision of the Administrative Appeals Tribunal in relation to the complementary protection claim was tainted by jurisdictional error by reason of the Tribunal having dismissed the evidence of the applicant without any logical, rational or probative basis.

7    As the written submissions for the Minister correctly identified, the New Ground which the applicant seeks to rely upon was not advanced by the applicant in the Federal Circuit Court and the applicant would require leave to raise this contention for the first time on appeal. In his oral submissions, the applicant accepted that the requirement for leave to raise the New Ground was relevant to his application for leave to appeal.

8    In support of the New Ground, the applicant’s written submissions stated that:

(1)    the proposed New Ground has merit;

(2)    the applicant was not represented in the hearing before the Federal Circuit Court;

(3)    the content of the Tribunal hearing would already be known to the Minister;

(4)    the applicant ought not be removed from Australia without his clams being properly assessed, particularly having regard to his claim of a risk of potential significant harm; and

(5)    there is no prejudice to the Minister in having the grounds of appeal articulated properly.

9    In response, the Minister submitted that:

(1)    the New Ground does not turn upon a question of construction or a point of law and had it been raised below the Minister may have led evidence or conducted his case differently;

(2)    despite being self-represented in the Federal Circuit Court, the applicant was invited to advance oral submissions and the primary judge himself considered, beyond the grounds advanced by the applicant, whether his application raised any arguable case;

(3)    Part 8 of the Migration Act 1958 (Cth) (the Migration Act) generally operates to provide for one substantive trial in the Federal Circuit Court and for one substantive appeal in this Court;

(4)    it is relevant that s 476A of the Migration Act removes from this Court original jurisdiction in cases of this kind;

(5)    it is unclear what is meant by the content of the Tribunal hearing already been known to the Minister. No transcript was filed by the applicant in those proceedings; and

(6)    the New Ground lacks sufficient merit so as to warrant the grant of leave to raise it for the first time in these proceedings, or to form a basis upon which to grant the applicant leave to appeal.

10    It is important to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7. Nevertheless, an appellate court, such as this 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] HCA 12; (1988) 180 CLR 491 at 497; Fualau v Minister for Home Affairs [2020] FCAFC 11 at [13].

11    In oral submissions the Minister referred to the decision of Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 (Han). The Minister contended that the decision in Han was analogous with the present circumstances and should lead to a refusal of leave to advance the New Ground. However, it is incorrect to draw an analogy with this case as the applicant in Han was legally represented before the primary judge. Given the applicant’s age and status as an unrepresented litigant I accept that there is an adequate explanation for the failure to have raised the New Ground before the Federal Circuit Court. I also consider that the applicant has reasonable prospects of obtaining leave to rely on the New Ground if leave to appeal were to be granted. Accordingly, the application for leave to appeal should be evaluated by reference to the New Ground. In particular, the salient question is whether by reason of the New Ground there is raised sufficient doubt about the correctness of the Federal Circuit Court decision so as to warrant the grant of leave to appeal. The second condition for the grant of leave to appeal, substantial injustice assuming the Federal Circuit Court decision to be wrong, may be taken as a given in the applicant’s favour.

Leave to appeal

12    The essence of the applicant’s argument was that it was illogical for the Tribunal to rely upon the Compliance Interview to cast doubt upon the applicant’s credibility in circumstances where the applicant was a young person being interviewed without the assistance of an interpreter which he required. In the Compliance Interview the applicant said his mother had borrowed money from relatives to repay a debt alleged to be owing but the applicant contended before the Tribunal that he had spoken in “poor English” as there was no interpreter and he had been misunderstood. According to the applicant the debt was still owing and was the foundation of the applicant’s claim to fear harm from creditors (who were said to be associated with the Congress Party) if he were forced to return to India.

13    To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, extreme illogicality must be demonstrated. The question that is asked is whether the decision maker, in this instance the Tribunal, could reasonably have come to the conclusion that it reached: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]. A finding that this Court might have arrived at a different conclusion from the conclusion arrived at by the Tribunal does not establish that the Tribunal’s conclusion was illogical or irrational: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148]; SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84].

14    The contention that the Tribunal dismissed the applicant’s evidence without any logical, rational or probative basis by relying upon the Compliance Interview in support of an adverse conclusion about the applicant’s credit is confounded for two reasons.

15    First, at [49] of the Tribunal’s reasons, the Tribunal specifically considered and weighed the fact that the applicant was unrepresented and used English in the interview without the aid of an interpreter. Having considered and weighed this fact, the Tribunal was satisfied that it could rely upon the Compliance Interview as the applicant “went on to adhere to a very large part of what he is reported to have said” during the Tribunal hearing. This adherence extended to the conclusion that the applicant was sent to Australia to earn money to send back to his family, a finding that was “confirmed emphatically in his advisor’s closing comments after their consultation during the hearing adjournment”: Tribunal’s reasons [52].

16    Second, as both the Tribunal’s reasons and the Federal Circuit Court decision noted, the applicant was assisted by his migration advisor during the Tribunal hearing: Tribunal’s reasons [4]; Federal Circuit Court decision [25]. Further, the hearing before the Tribunal was facilitated by an interpreter: Tribunal’s reasons [4]. As noted, the applicant contended that he had been misunderstood during the Compliance Interview. That contention having been made, it was then a matter for the Tribunal to evaluate that evidence and to determine what weight to give to the Compliance Interview in all of the circumstances. The Tribunal cannot be criticised for having reached the view that it did, that it could rely on the Compliance Interview, because doing so was not unreasonable in the circumstances and for the reasons the Tribunal gave.

17    For these reasons the New Ground does not raise sufficient doubt about the correctness of the Federal Circuit Court decision such as to warrant the grant of leave to appeal.

18    In his written submissions, the applicant also contended that there were certain inaccurate findings of fact by the Tribunal in relation to aspects of the applicant’s evidence which involved jurisdictional error. It was not clear whether these were mere particulars of the New Ground or independent grounds but, in any event, they too were not contended to be jurisdictional errors before the Federal Circuit Court. I propose to deal with these matters on the same basis as the New Ground, that is, that they should be considered as it is reasonably likely that the applicant would obtain leave to rely upon them in an appeal.

19    The applicant submitted that these inaccurate findings were a substantial basis for the Tribunal’s adverse credibility findings. The applicant pointed to the Federal Circuit Court decision at [15(a)]-[15(e)], which extracted certain findings of the Tribunal, as disclosing a number of inaccuracies when compared to the transcript of the Tribunal’s reasons hearing. These relevantly included:

15(a)    [the applicant] gave “opposing” evidence about his mother’s current occupation;

15(b)    [the applicant] suggested that his family was frequently changing houses but also claimed his sister continued to study at the same government school;

15(c)    [the applicant] changed his evidence on whether his problems began in December 2013 or August 2013;

15(d)    [the applicant] was able to continue at school during his family’s problems and achieve 70 per cent average marks in January-February 2014; and

15(e)    [the applicant] said he was sent to Australia to help his mother repay the money but also said that neither his mother nor anybody else in his family were trying to repay it.

20    None of the applicant’s criticisms of the Tribunal’s reasons arguably expose jurisdictional error. Rather, they approach the Tribunal’s reasons with an eye attuned to the perception of error which is contrary to principle: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

21    As to [15(a)] and [(b)], the Tribunal’s summary of the evidence is reasonable. It was also reasonably open to the Tribunal to conclude that the applicant’s evidence about his mother’s activities was inconsistent.

22    As to [15(c)], as the Minister submitted, the typographical errors as to the dates do not expose any fundamental misunderstanding of the applicant’s claims by the Tribunal.

23    As to [15(d)], the criticism is obscure but in any event does not disclose jurisdictional error.

24    As to [15(e)], again, the Tribunal’s summary of the evidence is reasonable.

25    Accordingly, these criticisms of the foundations of the Tribunal’s adverse credibility finding also do not raise sufficient doubt about the correctness of the Federal Circuit Court decision such as to justify a grant of leave to appeal.

26    Having regard to these matters it cannot be said that the Federal Circuit Court decision is attended by sufficient doubt to warrant reconsideration on appeal. The applicant’s case was effectively that it was a jurisdictional error for the Tribunal to place any weight on the Compliance Interview, given the youth of the applicant and the lack of an interpreter, and that certain inaccurate findings in relation to the applicant’s evidence formed the basis for adverse credibility findings. I do not consider these contentions to be reasonably arguable.

27    As to the former contention, the Tribunal received evidence on this issue, evaluated the evidence, and decided that it could place weight on the Compliance Interview. It was reasonably open to the Tribunal to do so.

28    As to the latter contention, the “fine tooth comb” approach which the applicant has taken to the Tribunal’s reasons is impermissible. The Tribunal’s reasons engage with the applicant’s claims on the basis of a reasonable characterisation of the applicant’s evidence and the drawing of reasonably open conclusions about the applicant’s credibility.

Conclusion

29    The applicant has not discharged his onus of satisfying me that the Federal Circuit Court decision is attended by sufficient doubt to warrant its reconsideration on appeal. For these reasons, the application for leave to appeal must be dismissed with costs.

Associate:

Dated:    29 May 2020