Federal Court of Australia

AFB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 299

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is Fijian. He has been in Australia since April 2001, having arrived on a tourist visa. In December 2014, he was granted a Class WB Subclass 020 Bridging B visa. In August 2016, that visa was cancelled on character grounds under s 501 of the Migration Act 1958 (Cth) (the “Act”). He has since been subject to immigration detention. On 10 September 2018, he made an application for a protection visa (the “Visa Application”).

2    In support of his Visa Application, the appellant claimed to have been involved as a whistle-blower who had provided information to the Fijian government concerning a corrupt or illegal visa scheme (the details of which, for reasons that will soon become apparent, needn’t here be rehearsed).

3    The Visa Application came before a delegate of the first respondent (the “Minister”), who, by a decision made on 5 December 2018, rejected it. That decision (the “Delegate’s Decision”) was then the subject of an application for review before the second respondent (the “Tribunal”). That application (the “Review Application”) was the subject of various written and oral submissions. By a decision dated 18 December 2019 (the “Tribunal’s Decision”), the Tribunal affirmed the Delegate’s Decision.

4    The appellant then filed an application for judicial review of the Tribunal’s Decision in what was then the Federal Circuit Court of Australia (the “FCCA”—now the Federal Circuit and Family Court of Australia (Division 2)). That application, dated 15 January 2020 (the “Judicial Review Application”), was dismissed with costs: AFB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] FCCA 1862 (the “FCCA Judgment”; Judge Driver).

5    By notice filed in this court and dated 8 September 2021, the appellant now appeals from the FCCA Judgment. For the reasons that follow, that appeal should (and will) be dismissed with the usual order as to costs.

The Tribunal’s Decision

6    It is not necessary to traverse in detail the reasons upon which the Tribunal’s Decision proceeded. It suffices to note that the appellant submitted before the Tribunal that his Visa Application ought to be granted because, if he were to return to Fiji, there was a real risk that he would be subjected to significant harm on account of his involvement in exposing, or otherwise informing against, participants in an illegal Fijian visa scheme. He claimed to be owed what is generally known as “complementary protection” under s 36(2)(aa) of the Act.

7    The Tribunal rejected that narrative as falsity and concluded that there were not substantial grounds for believing that the appellant would face a real risk of subjection to significant harm in the event that he were to return to Fiji.

8    In the lead up to the hearing that took place before the Tribunal, the appellant sought and obtained several adjournments. In the course of doing so, it emerged that he laboured under some mental health distress. Again, it is not necessary to particularise his condition; but that reality assumes some significance, as will shortly become apparent.

9    In addition to testing the appellant’s central narrative, the Tribunal appears to have had occasion to raise with him the significance of his mental health concerns. In its decision, it made the following observations:

47.     The Tribunal also discussed with him the report of Michael Kirton, his mental health claims, and, as outlined below…attempted to call Mr Kirton on two occasions as requested by the applicant. The applicant confirmed he had not had counselling with Mr Kirton since 2016 but said he talks to him and has sessions over the phone or on Skype. It also raised with him country information as to the availability of mental health treatment in Fiji and that it does not appear he has a real chance of serious harm or real risk of significant harm on account of any mental health issues he is claiming if he returns to Fiji.

The Judicial Review Application

10    Before the FCCA, the appellant submitted that the Tribunal Decision was a product of jurisdictional error because the Tribunal had failed to consider a matter that he had advanced in support of his Visa Application. Two grounds were pressed to that end, which it is convenient to replicate:

Ground 1: Error of Law - The Tribunal erred, amounting to jurisdictional error, by failing to consider an integer of the Applicant's claim that squarely arose on the materials (as was recognised by the Tribunal at [47]) that as a mentally ill person being returned to the Republic of Fiji he faced a risk of significant harm.

Ground 2: Error of Law - The Tribunal erred, amounting to jurisdictional error, by failing to give adequate reasons for decision, as required by section 430 of the Migration Act 1958 (Cth) by failing to give reasons for its conclusion that the Applicant did not face a risk of significant harm on account of being a mentally ill person being returned to the Republic of Fiji.

11    Before the FCCA, it was not in doubt that the appellant laboured under relevant mental health challenges, nor that the Tribunal had been alerted to that reality. Nonetheless, the Minister submitted—and the FCCA ultimately agreed—that he had not suggested that those challenges were, even potentially, a reason why his Visa Application ought to be granted. In other words, it was contended and accepted that the appellant had not nominated his mental health troubles as the source of any real risk that, were he to return to Fiji, he might be subjected to significant harm sufficient to warrant complementary protection under s 36(2)(aa) of the Act.

The appeal

12    The appeal to this court proceeded upon a single ground:

1.    The primary judge erred by dismissing each and every ground of review of the Tribunal’s decision relied upon by the then Applicant.

13    Self-evidently, the appellant hopes to persuade this court of matters about which he failed to persuade the FCCA.

14    The hearing of the appeal was scheduled to take place on Wednesday, 2 March 2022. Notice of that listing was provided on 14 December 2021. On 16 February 2022, the appellant contacted my chambers and requested, much as he had (to varying degrees of success) done with the Tribunal and the FCCA, that the hearing be adjourned on account of his mental and other health concerns. The Minister opposed any such adjournment and none was granted. Late in the evening of Tuesday, 1 March 2022—the night before the scheduled appeal hearing—the appellant contacted my chambers again and pressed an equivalent request.

15    Again, no adjournment was granted but the appellant was invited, if he wished to, to make oral submissions at the hearing as to why the appeal should be adjourned. As events transpired, an administrative mix-up meant that there was no court-organised interpreter available to assist the appellant at the hearing of the appeal on that day. Inquiries were made of the appellant as to whether he might be content to press ahead without one—inquiries that he appeared very much to understand and to which he was evidently quite capable of responding—but, after he indicated that he wasn’t, the matter was adjourned until Thursday, 24 March 2022.

16    The appeal proceeded on that date. An interpreter was present to assist the appellant during the hearing. Although helpful, he was largely redundant: it very quickly became apparent that the appellant was able to understand and respond to what was said in English—both by me and by counsel for the Minister—and, save for a very small number of interventions from the interpreter, the hearing proceeded on that basis.

17    Central to the appeal is the appellant’s contention that the Tribunal ought to have but did not address his contention that, as a mentally ill person, he faced a risk of significant harm were he to return to Fiji. That failure is said to bespeak jurisdictional error, which the FCCA wrongly failed to correct.

18    The Tribunal’s obligation to consider what the appellant advanced is not in doubt: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13, 19 [22] (Keane, Gordon, Edelman, Steward and Gleeson JJ); CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131, 149-150 [76] (Allsop CJ, Kenny and Snaden JJ). If, as he suggests, the appellant contended that his Visa Application should succeed because, or for reasons that included that, he would face the prospect of significant harm in Fiji on account of his mental health challenges, then any failure on the Tribunal’s part to consider that contention would amount to jurisdictional error and its decision would rightly be impugned as one that it lacked jurisdiction to make.

19    The issue, then, turns upon whether or not the contention was advanced. As he did before the FCCA, the Minister maintained that it was not. During the hearing of the appeal, the appellant was unable to identify a location within the very extensive appeal book at which the court might find a record of his seeking to agitate that which he complains that the Tribunal failed to consider. As I undertook at the hearing to do, I have reviewed the content of the appeal book very carefully. I accept the Minister’s contention. Nowhere does the claim that the appellant says went unconsidered by the Tribunal find expression in any of the voluminous materials that were advanced in support of the Visa Application. Instead, those materials focused almost entirely upon the political ramifications of the appellant’s whistle-blowing activities (which were rejected at a factual level and which pose no significance to the present appeal).

20    True it is that the material advanced by the appellant disclosed the state of his mental health over time. Nonetheless, the significance of that material seems to have been limited to the adjournment requests that he made over the course of his Visa Application. Nowhere was it suggested that, because of his condition, there was reason to believe that he faced a prospect of significant harm in the event that he were to return to Fiji.

21    In the absence of the point having been clearly articulated, or having emerged with requisite clarity from what was, the Tribunal was under no obligation to consider it: NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1, 19 [58] (Black CJ, French and Selway JJ). Any failure to do so falls short of jurisdictional error and, with respect, the FCCA was correct to so conclude. Likewise, no complaint can be made about any related failure to provide the written reasons to which the appellant’s claim in the FCCA related. The Tribunal was not obliged to provide reasons in support of a conclusion that it didn’t reach.

22    The above analysis presupposes, of course, that the Tribunal did not consider the significance of the appellant’s mental health condition. In light of the observations made at [47] of its reasons (above, [9]), there is at least some reason to doubt that. It is apparent that the Tribunal was conscious of the appellant’s condition and that, contrary to his central contention, it did give at least some consideration to whether or not it might afford him an entitlement to complementary protection under s 36(2)(aa) of the Act.

23    Whether or not account was taken of a particular matter prior to the making of an administrative decision is a question of fact. Generally, that question is answered upon the drawing of an inference from the reasons that are given in favour of the decision in question. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court held (at 604 [47]) that an:

…inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

24    Even if, contrary to the conclusion that I have drawn, the Tribunal was obliged to consider the prospect that the appellant might face a real risk of subjection to significant harm in Fiji on account of his mental ill-health, it could not safely be inferred that it failed to do so.

25    The Tribunal’s Decision was not tainted by either of the jurisdictional errors that the appellant alleges. Respectfully, the FCCA was correct so to conclude. The appeal should and will be dismissed with the usual order as to costs.

Associate:

Dated:    30 March 2022