Federal Court of Australia

EEP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 403

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    This is an appeal from a decision of the Federal Circuit Court dismissing an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 14 August 2020, which affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa: EEP20 v MICMSMA [2021] FCCA 154.

2    For the reasons given below, the appeal is dismissed.

Federal Circuit Court

3    The primary judge provided a very detailed summary of the facts and history of this matter: at [1]-[41]. The appellant was unrepresented in that Court. There was only one ground of appeal identified before the primary judge, being that “[t]he Tribunal erred by not serving me with natural justice letter informing me of issues that would be adverse to my application, an example being a police report which it deemed to be a support letter” .

4    The primary judge concluded at [50]-[51] that:

It is not clear what this ground means. The Tribunal’s obligation to give the applicant information is exhaustively stated in s 424A, having regard to s 422B. Accordingly the Tribunal was only obliged to give the applicant notice of information if it fell within s 424A(1) as information that in its terms was a rejection, denial or undermining of his claims to the visa. The applicant has not identified any such information. If the applicant’s reference to a “police report” is meant to be the police letter that he had provided to the Minister’s Department on 29 April 2019, this did not comprise “information” for the purposes of s 424A because it was information that the applicant gave during the process that led to the decision that was under review, under s 424A(3)(ba). Accordingly the ground of appeal must fail.

The letter referred to by the applicant appears at CB 120. It was provided by the applicant in support of his visa application. The Tribunal expressly considered the letter at [82] of its reasons. I see no error with the Tribunal’s approach.

5    Cognisant of the fact that the appellant was unrepresented, the primary judge also independently considered whether there was any error in the Tribunal’s decision and concluded that there was not: at [52].

6    The primary judge dismissed the application.

Consideration

7    The grounds identified in the notice of appeal claimed:

1.    I had no lawyer and did not understand any of the case

2.    My case is that the Judge Drivers Direction

8    I note that the ground relied on in the Federal Circuit Court is not relied on in this Court.

9    I note also that on two occasions prior to the hearing of the appeal, the appellant was granted a pro bono certificate for legal assistance, on each occasion the referral was picked up by a barrister, but on each occasion the barrister was relieved of the obligation to assist.

10    The appellant is therefore unrepresented in these proceedings, assisted by an interpreter.

11    The appellant did not file any written submissions in support of his appeal.

12    During the hearing the appellant made submissions, which were focussed particularly on explaining what he conceded were errors he made in his evidence in the Tribunal. The submissions were not directed to establishing any errors by the primary judge. The appellant implored the Court to consider his matter to see if it could be looked at in a different way. That is, to consider the merits of his claim to reach a different conclusion than has been made.

13    The difficulty faced by a self-represented litigant cannot be minimised. However, this Court cannot meaningfully engage with the appellant’s grounds of appeal where the grounds make general and unparticularised complaints. It is well-established that an appeal requires the identification of error. No attempt at an identification of error on the part of the primary judge has been carried out by the appellant. It is not for this Court to perform that function: FLW17 v Minister for Immigration [2019] FCA 352 at [17].

14    Given the appellant was unrepresented, his submissions not being focused on error is understandable. However, in that context it is timely to note the limited role of the Federal Circuit Court, and this Court on appeal: see the summary in BRQ18 v Minister for Home Affairs [2019] FCA 319 at [15]-[17]. The Federal Circuit Court could only have disturbed the decision of the Tribunal under review if that decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. This Court’s appellate function is to ascertain whether there is an error in the decision of the Federal Circuit Court. Neither Court has the jurisdiction to consider the factual merits of the Tribunal’s decision. The issue is not whether this Court or the Federal Circuit Court agrees with the decision.

15    This Court has no jurisdiction to conduct some general supervisory review of decisions of the Federal Circuit Court. It has no jurisdiction to give any advisory opinion as to what it perceives to be the legal or factual merits of a decision made by a judge of that Court: SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [25].

16    Of the grounds of appeal filed, only the first can be considered, as the meaning of the second is entirely unclear.

17    As to the first ground, the primary judge was mindful of the fact that the appellant was unrepresented, took steps to minimise the disadvantage that placed on him, and took that disadvantage into account. So much is readily apparent from the primary judgment at [44], [46], and [52]. For example, the primary judge had the Minister’s counsel make submissions first, to explain the legal issues to the appellant, and further, his Honour considered for himself, independently to the ground of review in that Court, whether there was any jurisdictional error.

18    In so far as the appellant now complains that he did not understand the proceedings, it is apparent from the reasons that the primary judge did provide an explanation. That the appellant did not have a lawyer is not a basis for establishing this ground. There has been no attempt to particularise the ground. This ground is not established.

19    As is plain, I have considered the decision of the primary judge. No appealable error is otherwise apparent. The appeal must be dismissed with costs.

Associate:

Dated:    21 April 2022