Federal Court of Australia

CMI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 255

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants must pay the first respondent's costs of the appeal on a lump sum basis.

3.    By 4.00 pm on 5 April 2022, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs of the appeal.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (as it then was) made on 29 May 2020. The appellants are citizens of Malaysia with Chinese ethnicity. The first appellant claims to meet the criteria for the grant of a protection visa because he is a person towards whom Australia has protection obligations. The second appellant is his wife and claims to be entitled to a visa because she is a member of the first appellant's family unit. She has made no independent claim to protection of her own.

2    As will be explained, the grounds of appeal on which the appellants relied do not correspond to any grounds put to the primary judge or any issues that were before his Honour. The appellants therefore need leave to rely on the new grounds.

3    For the reasons that follow, the proposed new grounds have no apparent merit. Leave to rely on them is refused and the appeal must be dismissed.

Background and the Tribunal's decision

4    The first appellant arrived in Australia on a visitor visa on 7 April 2011 and the second appellant did the same on 27 March 2013. They both stayed in Australia after the expiries of their visas in July 2011 and June 2013 respectively, and so became unlawful non-citizens. They applied for protection visas on 5 May 2015.

5    Only the first appellant's claims for protection are relevant. In his protection visa application, those claims were put in very broad terms as based on the fact that he is a Buddhist and Muslims in Malaysia will harm him because his religion is different to theirs.

6    The appellants did not take up the invitation by the delegate deciding their application to attend an interview. On 16 May 2016, the delegate refused to grant the protection visa.

7    The appellants applied to the Administrative Appeals Tribunal for review of the delegate's decision. The Tribunal held a total of six hearings which the appellants attended, that number being explained mostly by the Tribunal's willingness to accommodate the availability of witnesses the appellants called.

8    Before the Tribunal, the first appellant raised for the first time a specific basis on which he claimed to fear harm if he were returned to Malaysia. This was that when, in 2010, the first appellant had been installing air conditioners for a man called Mohammed, he accidentally dropped an air conditioner, and it landed on the foot of Mohammed's son. The first appellant claimed that as a result, Mohammed arranged for people to harass and assault the first appellant and to damage his shop. He claimed that the police were called and that the following day there was another attack which caused him to go to hospital. He claimed that Mohammed was part of a powerful Muslim family. He was not sure whether Mohammed was aware at the time of the incident that he, the first appellant, was a Buddhist, but he suggested that Mohammed would have become aware of it when he visited the first appellant's shop, which contained a small statue of Buddha. The Tribunal recorded in its oral reasons for decision delivered on 30 May 2019 (the paragraphs of which are not numbered) that the first appellant had said that (AB 161):

when Mohammed and the group came to his workshop they would have been able to see that he is Buddhist and also a supporter of a Malaysian opposition party. He had not been a member of the opposition party in Malaysia. He had been a supporter of a party called the Rocket Party.

9    I mention this because the first appellant's alleged affiliation with the Rocket Party is the subject of his proposed new grounds of appeal. Later, on the same subject, the Tribunal said (AB 162):

He claimed that corruption in government is severe in Malaysia. He said he participated in an organised protest strategy, it was called Bursi 5. He had actively participated in Bursi 1 to 4. Bursi 5 was in Perth. The tribunal notes that since the hearing the previous opposition party is now part of the coalition government. So the party for which the primary applicant was advocating now jointly holds power. This is a significant change in circumstances.

10    The Tribunal received evidence from the second appellant, including evidence about her husband's alleged political involvement which the Tribunal found to be unconvincing. The Tribunal found several other aspects of the second appellant's evidence to be unconvincing including her evidence that the first appellant did not go to hospital after any attack from Mohammed and his associates, which contradicted the first appellant's account. Evidence from the first appellant's sister and his mother, similarly, contradicted the first appellant's claim.

11    The Tribunal made the following findings about the first appellant's political activities (AB 164):

The tribunal has no difficulty accepting that he did have some political interests and that he followed the Rocket Party. However, the tribunal considers that his involvements were only ever at a very low level. The tribunal also notes that the party, which he supported, is now in government in any event.

12    And later (AB 164-165):

The tribunal again notes that the party to which the Rocket Party was aligned whilst he was living in Malaysia is now part of the ruling coalition. So a lot has happened since the applicant left … Malaysia in 2011. The political environment has changed. It would be hardly likely that the applicant would involve himself with political rallies now that his side of politics is in government.

13    The Tribunal also noted that the first appellant agreed that individuals in Malaysia 'do not face societal violence on the grounds of their political affiliations' (AB 164).

14    Based on country information and a lack of specific evidence of harm, the Tribunal did not accept that there was a real chance of the applicants suffering discrimination for the general reason of being Chinese Malay. It also found that there was no real chance of serious harm and discrimination in Malaysia by reason of the appellants being Buddhist.

15    The Tribunal found that the first appellant had no satisfactory explanation for the four year delay in applying for a protection visa after arriving in Australia. It also found that there was no reasonable explanation as to why the alleged incidents concerning Mohammed were not mentioned in the first appellant's protection visa application, and was not satisfied that the incidents occurred.

16    The Tribunal also found that any discrimination directed against Buddhists in Malaysian society was experienced broadly and not directed to any individuals, and there was no evidence that the appellants were subject to serious harm or discrimination by reason of their religious beliefs.

17    As to the first appellant's involvement with the Rocket Party, the Tribunal concluded (AB 167):

The tribunal has also given consideration to whether the primary applicant does fear serious harm for reason of his political involvements and followings. It has identified to the applicant that much has changed in Malaysia since his departure. The Rocket Party was to a large extent a supporter of the Democratic Action Party. The Democratic Action Party is now part of the ruling coalition and was elected to government in May 2018.

There is nothing to suggest that previous supporters of the Rocket Party face any risk of harm for reason of their political involvements. His political involvements were at a very low level. He was never arrested. It would be highly unlikely that he would be targeted for reason of any political persuasion if he returns to Malaysia. The tribunal finds that he does not face a real chance of suffering serious harm for reason of his political involvements.

18    On the basis of these findings the Tribunal concluded that the first appellant had no well-founded fear of persecution for the purposes of s 5J of the Migration Act 1958 (Cth) if he were to return to Malaysia, and was therefore not a refugee for the purposes of s 5H and did not satisfy the criterion in s 36(2)(a) of that Act. The Tribunal also found that he did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Tribunal therefore affirmed the delegate's decision to refuse to grant a protection visa.

The Federal Circuit Court proceeding

19    In order to succeed in the Federal Circuit Court, it was necessary for the appellants to demonstrate jurisdictional error in the decision of the Tribunal: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [83]. The appellants have been self-represented throughout and their grounds of review in the Federal Circuit Court were, with respect, unclear. It is not necessary to set them out since, as I have said, they are not the subject of any ground of appeal in this Court. A general description will suffice.

20    The grounds of review alleged bias and prejudice against the Tribunal which the primary judge correctly dismissed for lack of any evidence. The grounds of review also sought to impugn, without particulars, broad conclusions such as that there was no real risk that the first appellant would suffer significant harm in Malaysia and that the Tribunal did not believe that the first appellant had been 'bashed or otherwise harmed by religious beliefs'. The primary judge considered the Tribunal's reasoning on these subjects and concluded that they displayed no jurisdictional error.

21    To the extent that the grounds of review descended to specifics, they asserted that: the Tribunal erred in finding that the first appellant's explanation for not raising the claim about Mohammed in his protection visa application was unsatisfactory; it erred in finding to be curious an explanation that the first appellant gave as to why he, and not a co-worker who was with him, had been persecuted by Mohammed; and it erred in finding that a lack of funds to prevent the first appellant obtaining professional advice did not explain the delay in making a protection visa application. The primary judge considered the Tribunal's reasoning on each of these points carefully and found that they displayed no jurisdictional error. His Honour also considered a claim made by the first appellant at the hearing that the Mandarin interpreters before the Tribunal had been inadequate, and found that this had not been made out, essentially for a lack of particularisation or evidence. With respect, no error is apparent in his Honour's analysis of any of these matters and, as I have indicated, no error is asserted.

The proposed new grounds of appeal

22    There are two grounds of appeal. It is convenient to start with the particulars to each, as they are essentially identical. The particulars to ground 1 are:

a.    In the Tribunal's decision, the Tribunal held that:

i.    'The Tribunal again notes that the party to which the Rocket Party was aligned whilst he was living in Malaysia is now part of the ruling coalition. So a lot has changed since the [First Appellant] left Malaysia in 2011. The political environment has changed. It would be hardly [sic] unlikely that the [First Appellant] would involve himself with political rallies now that his side of politics is in government': Federal Circuit Court Book (CB) at page 164/165; and

ii.    'much has changed in Malaysia since [the First Appellant's] departure. The Rocket Party was to a large extent a supporter of the Democratic Action Party. The Democratic Action Party is now part of the ruling coalition and was elected to government in May 2018': CB-167;

b.    The ruling coalition [with] which the Rocket Party was aligned has since fractured, resulting in its ousting from government and a change in Prime Ministership;

c.    Therefore, the level of risk of persecution the Tribunal attributed [to] the First Appellant would face in the event he is forced to return to Malaysia can no longer be supported on findings of fact supported by logical grounds.

23    Ground 1 asserts on the basis of these particulars that the Tribunal made a jurisdictional error 'by acting on a mistaken understanding of the First Appellant's risk of being persecuted in Malaysia on account of his political ideology, and thereby engaging in a process of reasoning that was illogical and not based on findings of fact supported by logical grounds'. Ground 2 asserts that the Tribunal made a jurisdictional error:

by failing to consider evidence that the ruling coalition … which the Rocket Party was aligned with have been ousted from government and have lost the Prime Ministership, which was evidence relevant to the proper assessment of the risk of persecution which the First Appellant will face in the event he is forced to return to Malaysia.

24    The only other difference between ground 1 and ground 2 is that particular (c) to the latter is: 'The Tribunal's failure to take into account the above evidence resulted in it attributing an erroneous level of risk of persecution facing the First Appellant in the event he is forced to return to Malaysia'.

Principles governing leave to raise new grounds on appeal

25    These grounds were not raised before the Federal Circuit Court so the appellants need leave to rely on them. The basic principles that should, generally, govern the Court's approach to exercising the discretion appear in the oft-cited decision of VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48]:

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs [[2000] FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

26    To that may be added two important considerations specific to appeals in refugee matters that can often point in different directions. One is that, as Perram J observed in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] (approved in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [28]):

… Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance … this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

Depending on the outcome, the same may be denied to the respondent too, of course.

27    The other consideration is the particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [90] (O'Callaghan and Colvin JJ, Allsop CJ agreeing). None of the above is to suggest that it is a matter for formulaic checklists; the overriding concern must always be the broad one of the interests of justice.

Whether leave to raise the new grounds should be given

28    When asked at the hearing of this matter whether the appellants were able to explain why the new grounds of review had not been raised in the Federal Circuit Court, the first appellant referred to his inability to speak and read English, while the second appellant noted that she was very worried and very concerned at the time of the Federal Circuit Court hearing. Both of those things may be readily accepted as impediments to a self-represented applicant who is not proficient in English putting his or her case fully. However, the appellants plainly had assistance of some kind in preparing the new grounds, and there is no explanation as to why they were unable to obtain that assistance before the Federal Circuit Court hearing. The first appellant also claimed from the bar table that information about the Rocket Party was put to the primary judge, but there is no evidence of that and no trace of it in his Honour's thorough decision. His Honour only refers to the Rocket Party in the course of summarising the Tribunal's decision, so I do not accept that it was a point raised before him.

29    The appellants have therefore not given any satisfactory explanation as to why they did not raise the proposed grounds with the primary judge. In any event, I do not consider that it would be expedient in the interests of the administration of justice to give the appellants leave to raise the grounds. Acknowledging the seriousness for them of any decision to dismiss their appeal, the broader interests of justice cannot be served by permitting parties to agitate plainly unmeritorious grounds. For the proposed new grounds do warrant that description. While the drafter of the grounds seems to have had a passing acquaintance with administrative law, he or she appears to have overlooked the fundamental principle that the question whether an administrative decision, such as that made by the Tribunal, lacked lawful authority is to be judged by reference to the circumstances that pertained at the time of the decision.

30    A Full Court recently stated the principle as follows in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [28] (Beach, Thawley and Cheeseman JJ):

The question whether the IAA's decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision. This point was made by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118:

In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made

and by Mortimer J in Parker v Minister for Immigration & Border Protection [2016] FCAFC 185; (2016) 247 FCR 500 at [77] (see also at [60] per Griffiths and Perry JJ):

The appellant's submission that the 'outcome' of the Minister's cancellation decision is, after the annulment, legally unreasonable misunderstands the Court's function on judicial review. The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister's decision, that could not be the case.

This aspect of the decision in Parker was, unlike other aspects of the decision, not doubted by the High Court in Minister for Immigration & Border Protection v Makasa [2021] HCA 1; 95 ALJR 117; 386 ALR 200, see in particular at [59].

31    So in EGZ17 the Full Court held that a judge had erred when, for the purposes of judicial review of a decision concerning Afghanistan made in 2017, he took into account the Taliban takeover of that country in 2021.

32    If each of the grounds of appeal here is taken in isolation, they could be read as asserting that the Tribunal made an error that was an error at the time of the Tribunal's decision. But in ground 2 even that is not clear, as the language used to say that the Rocket Party 'have been' ousted from government and 'have lost' the Prime Ministership suggests developments that have occurred since the Tribunal's decision. In any event, the grounds should not be read in isolation from the particulars. As quoted above, the particulars refer to the Tribunal's decision and then say that the relevant party coalition 'has since fractured' and that the Tribunal's findings 'can no longer be supported'. That indicates that these things happened after the decision under review.

33    Also, there is no sound basis in the evidence for a claim that the Rocket Party had fallen into opposition before the Tribunal made its decision. As set out above, the Tribunal recorded that it 'identified to the applicant that much has changed in Malaysia since his departure' and that the Rocket Party and the Democratic Action Party were at the time of the Tribunal's decision part of the ruling coalition. There is no indication in the record that the first appellant took issue with that factual proposition. None of the material in the court book indicates that the apparent 'fracturing' of the ruling coalition had occurred by the time of the Tribunal's decision or had been put to the Tribunal. The Tribunal does record the evidence of the second appellant as including a statement that her husband is a supporter of the Rocket Party and the Rocket Party is in opposition to the government. But it is clear from the Tribunal's reasons that it found the second appellant's evidence unconvincing, including in relation to her husband's political affiliations. There is no apparent basis to assert illogicality in the decision at the time it was made, or a failure to consider a claim squarely put to the Tribunal.

34    I consider that in this case, as in EGZ17, the appellants want the Court to take into account political developments in the receiving country that took place after the decision that is under review. The proposed grounds are not reasonably arguable.

Conclusion

35    The appellants' omission to raise the new grounds before the primary judge is not satisfactorily explained and the grounds plainly lack merit. Leave to rely on them is refused. There being no other grounds of appeal, the appeal must be dismissed, with costs.

Associate:

Dated:    22 March 2022