Federal Court of Australia

AJM20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1443

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

3.    The first respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

CHEESEMAN J

Introduction

1    The applicant, a citizen of India, seeks leave to appeal from a decision of the then Federal Circuit Court of Australia, now the Federal Circuit and Family Court of Australia, by which an application for judicial review was dismissed: AJM20 v Minister for Immigration & Anor [2020] FCCA 2414 (PJ). The application for judicial review was in respect of a decision of the second respondent in these proceedings, the Administrative Appeals Tribunal, to affirm a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs, to deny the applicant a protection visa. The primary judge listed the judicial review application for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), as then in force. The applicant’s application for judicial review was summarily dismissed by the primary judge at the show cause hearing.

2    The primary judge’s decision was interlocutory: r 44.12(2) FCC Rules. As such, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The application for leave to appeal was filed within the 14-day time period prescribed by r 35.13 of the Federal Court Rules 2011 (Cth).

Background

3    The applicant is a citizen of India who arrived in Australia on 21 March 2016 on a subclass 600 Tourist Visa. He applied for a protection (subclass 866) visa on 20 April 2016. The delegate refused the protection visa application on 19 August 2016. On 13 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal delivered its reasons for decision on 7 January 2020, affirming the decision of the delegate to refuse the protection visa application (T).

4    On 28 January 2020, the applicant applied to the Circuit Court for judicial review of the Tribunal’s decision. The matter was listed for a show cause hearing, following which the primary judge dismissed the application for judicial review.

5    On the hearing for this application for leave to appeal, the applicant appeared in person, with the assistance of an interpreter.

The Delegate’s Decision

6    The delegate refused the applicant’s application for a protection visa on the basis that the applicant did not satisfy the criteria for a protection visa. Although invited to arrange one, the applicant did not participate in an interview with the department.

7    The applicant claims that violence broke out because of Jat activists who took issue with a quota system. The applicant claimed that his father was against the Jat demands for quotas, asked the business community not to support their demands and that their family business was subsequently ransacked and burnt down. The applicant claimed that he feared violence and retribution from the Jat activists if made to return to India. The delegate found based on country information available to the delegate that the Indian government had conceded to the Jat activist’s demands and that the circumstances that gave rise to the claimed harm no longer existed. The delegate also found that there was insufficient evidence to support the applicant’s claims.

8    As a result, the delegate found that Australia did not owe the applicant protection under s 36(2)(a) of the Migration Act 1958 (Cth) because he was not a refugee as defined by s 5H(1) of that Act, in that he did not fear persecution on the basis of his race, religion, nationality, political opinion, or membership of a particular social group. The delegate also found that Australia’s protection obligations under s 36(2)(aa) of the Migration Act were not enlivened because there were not substantial grounds for believing that there was a real risk that the applicant would experience harm if made to return to India.

The Tribunal’s Decision

9    The applicant sought review of the delegate’s decision in the Tribunal. The applicant appeared in person, unrepresented with the assistance of an interpreter at the hearing.

10    The Tribunal made adverse findings as to the applicant’s credibility, particularly as it related to his experiences with violence in the region in which he had lived. The Tribunal found that the applicant had a tendency to conflate violence that had occurred generally in the region with his own experiences. The Tribunal found that, in his oral evidence at hearing, the applicant sought to associate himself with violence that had occurred in the region but there was insufficient evidence connecting that violence to his own personal experience: (T[24]).

11    The Tribunal found that the applicant was not a person to whom Australia has protection obligations under s 36(2)(a) of the Migration Act on the basis that he does not face a “real chance of serious harm amounting to persecution in his home area… or India as a whole, for any reason”: (T[47]). The Tribunal also found that the applicant was not a person to whom Australia has protection obligations under s 36(2)(aa) of the Migration Act because there were “no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to India”: (T[52]).

Primary Judge’s Decision

12    The applicant sought judicial review of the Tribunal’s decision in the Circuit Court. The applicant relied on the following four grounds (as written):

(1)    The second respondent failed to comply with the mandatory requirements under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequences of its being relied upon, and to invite the applicant to comment or respond to that information.

(2)    The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his return to India.

(3)    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Migration Act.

(4)    The Tribunal failed to investigate applicant’s claim, specially the grounds of persecution in India.

13    The first ground was particularised by reference to a claim that the Tribunal had failed to provide a written invitation under s 424A of the Migration Act and did not comply with the requirements under s 424AA of that Act. No particulars were provided for grounds 2, 3 or 4.

14    In dismissing the first ground, the primary judge held (at P[19] as written):

19     …This ground is entirely devoid of particulars. The applicant does not even attempt to identify the information that he contends the Tribunal was required to put to him for comment under s.424A, and no such information is apparent. The Tribunal’s adverse credibility findings were primarily based on identified contradictions and inconsistencies in the applicant’s claims and evidence. Inconsistencies and the Tribunal’s subjective appraisal of the evidence do not constitute “information” for the purposes of s.424A. As no information that enlivened the Tribunal’s s.424A obligations is either identified or apparent, the assertion that the Tribunal breached its s.424A obligations cannot succeed.

(Footnotes omitted.)

15    With regard to the second ground, the primary judge held:

20    …As this ground is also devoid of any particulars or details to identify or explain how the Tribunal’s approach was erroneous, it would fail on the basis of a lack of particularity alone.

21    In any event, the Tribunal comprehensively considered the applicant’s claims to fear harm in India and its rejection of those claims on the basis of adverse credibility findings were supported by cogent and logical reasons. The Tribunal correctly cited the relevant law and there is nothing in its decision to suggest that it asked itself a wrong question or applied the wrong statutory test. In substance, this ground appears to be nothing more than an expression of the applicant’s disagreement with the Tribunal’s factual conclusions and seeks to invite the Court to engage in impermissible merits review.

(Footnotes omitted.)

16    The primary judge held, with respect to the third ground, that (at P[22]):

22     …This ground discloses no jurisdictional error on behalf of the Tribunal and is no more that a bare assertion which is meaningless without further particulars. The findings of the Tribunal, including its adverse credibility findings, were open to it on the available information for the reasons it gave.

(Footnotes omitted.)

17    Finally, in dismissing the fourth ground, the primary judge held (at P[23]):

23     …If the Tribunal cannot be satisfied on the basis of the material presented that the applicant’s claims are genuine, it had no general duty to make further inquiries or obtain information beyond what is provided to it by the applicant. The applicant made no attempt to identify a critical fact the existence of which was easily ascertained that might give rise to a specific duty on the Tribunal to make an enquiry, and none is apparent.

(Footnotes omitted.)

18    As mentioned, the primary judge summarily dismissed the application pursuant to r 44.12 of the FCC Rules, with costs.

Leave to Appeal

19    The applicant relies on two grounds in the application for leave to appeal. These are (as written):

1.    The Hon Judge failed to consider that The Tribunal decision was effected by jurisdictional error in that the Tribunal failed to correctly apply the law.

2.    The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of the AAT.

20    No particulars were provided for either ground of the application for leave to appeal.

Draft Notice of Appeal

21    The applicant attached a draft notice of appeal to his affidavit dated 7 September 2020. The draft notice of appeal set out the following grounds of appeal (as written):

1.    The Hon. Judge failed to consider that the second respondent had denied the applicant procedural fairness reaching conclusions without considering the evidence.

2.    The Ho. Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

Leave to Appeal

22    The principles which apply to an application for leave to appeal from an interlocutory decision are well established and were summarised by the Full Court in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] (Perram, Moshinsky and Hespe JJ):

5     …In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ. The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal “have general importance beyond the concerns of the parties”: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [10] per Heerey, Moore and Tracey JJ. See also ACE Insurance Ltd v Trifunovski (2012) 291 ALR 46 at [7]-[9] per Flick J.

23    The onus is on the applicant to prove that: (a) there is sufficient doubt; and (b) there would be substantial injustice if the application is refused, supposing that the decision below is wrong: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7] to [8] (Flick J).

Consideration

24    As mentioned, the applicant is a litigant in person. I am conscious of the difficulties experienced by litigants in person, particularly in a case such as this where the result of the proceeding will have a serious effect on his future. I have accounted for this when considering the oral submissions made by the applicant at the hearing. The applicant did not file written submissions but attended the hearing of the leave to appeal application and made oral submissions.

Ground 1 – failure to consider jurisdictional error

25    The first ground of the application for leave to appeal is that the primary judge “failed to consider that the Tribunal decision was effected by jurisdictional error in that the Tribunal failed to correctly apply the law”. The applicant submitted at the hearing that the primary judge had failed to ask the applicant for any proof of errors made by the Tribunal when making the decision to dismiss the application for judicial review. He further expressed that he felt that the primary judge had not adequately considered the material available, including the decision of the Tribunal. The applicant’s submissions were in the nature of general complaint. The applicant did not attempt to establish error on the part of the primary judge.

26    The primary judge did consider the complaint that the Tribunal failed to correctly apply the relevant law, and that the primary judge dismissed this complaint on the basis that it was not supported by any particulars.

27    The applicant submitted that he had provided the Tribunal with a number of newspaper articles. These articles pertained to violence committed by Jat activists in the region of India the applicant is from. The primary judge referred to these articles, and noted that at the hearing before the Tribunal the applicant confirmed that the articles do not include any reference to his home area or his family: PJ[8].

28    The applicant has not identified any particulars or evidence to support a claim that the primary judge failed to consider whether the Tribunal’s decision was infected with jurisdictional error.

29    Ground 1 is without merit.

Ground 2 – failure to consider factual and legal errors in Tribunal’s decision

30    The second ground states that the primary judge “dismissed the application without considering the legal and factual errors contained in the decision” of the Tribunal.

31    The Minister correctly submitted that the primary judge appropriately considered each ground of appeal advanced by the applicant. The court below was precluded from undertaking a merits review of the Tribunal’s decision. The Minister submitted that the applicant failed to establish any failure by the primary judge to consider the alleged legal or factual errors made by the Tribunal. The Minister further submitted at the hearing that, similarly to the first ground of the application for leave to appeal, this ground is unparticularised and unsupported by evidence. I agree.

32    The primary judge considered the applicant’s claims and the evidence such that it was and gave cogent reasons for summarily dismissing the judicial review application. Ground 2 is without merit.

Draft Notice of Appeal Grounds

Ground 1

33    The first ground proposed in the draft notice of appeal asserts that the primary judge failed to consider that the Tribunal denied the applicant procedural fairness by making its decisions without considering the evidence available to it. This complaint was not put to the primary judge. Leave is therefore required for it to be considered at an appeal.

34    Leave to raise a new ground may be granted if it is expedient in the interests of justice to do so. 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 explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

35    The Minister submits, and I agree, that leave to rely upon this proposed ground of appeal should be refused because the ground has no merit, and the applicant has not explained why it was not raised before the primary judge. The primary judge was relevantly satisfied that the Tribunal’s adverse credibility findings were open on the available materials and that the applicant had not provided any supporting evidence for his claims, other than the newspaper articles mentioned above.

36    In addition, even if leave is granted, this ground of appeal would not succeed because the evidence indicates that the applicant attended the hearing before the Tribunal with the assistance of an interpreter, and there was no information which was required to be put to the applicant pursuant to the Migration Act. The allegation that the Tribunal failed to provide the applicant with procedural fairness is without merit.

Ground 2

37    The second proposed ground is relevantly identical to ground two of the application for leave to appeal and is lacking in merit for the same reasons.

Conclusion

38    I now turn to the two broad questions relevant to the grant of leave to appeal.

39    First, I am not satisfied that there is sufficient doubt as to the correctness of the primary judgment to warrant its consideration on appeal. The applicant has not established that the decision of the primary judge was infected by jurisdictional error.

40    Secondly, I am not satisfied that, even on the assumption that the primary judgment is incorrect, there would be substantial injustice if the application for leave to appeal is refused. The applicant has been unable to establish that the primary judge’s decision was attended by error, and on the material provided on this application, would likely be similarly unable to do so on appeal.

41    For these reasons, the application must be dismissed with costs.

Associate:

Dated:    23 November 2023