Federal Court of Australia

AES20 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCA 1448

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, to dismiss an application for judicial review: AES20 v Minister for Immigration & Anor [2020] FCCA 2363 (PJ). The application for judicial review was in respect of a decision of the second respondent, the Administrative Appeal Tribunal, to affirm a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to deny the applicant a protection visa. The primary judge convened a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) as then in force. The primary judge summarily dismissed the applicant’s application for judicial review at the show cause hearing.

2    The primary judge’s decision was interlocutory: r 44.12(2) of the FCC Rules. Therefore, 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 period required by r 35.13 of the Federal Court Rules 2011 (Cth).

BACKGROUND

3    The applicant arrived in Australia on 10 April 2016 with a visitor (subclass 600) visa. Soon after his arrival, on 30 June 2016, the applicant applied for a protection (subclass 866) visa. This application was denied by the delegate on 19 January 2017. The applicant applied to the Tribunal for review of the delegate’s decision on 9 February 2017. The Tribunal affirmed the decision of the delegate on 20 December 2019: (T).

4    The applicant then applied to the Circuit Court for judicial review of the Tribunal’s decision. As mentioned, as a result of a show cause hearing, the primary judge summarily dismissed the judicial review application on 26 August 2020.

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

THE DELEGATE’S DECISION

6    The applicant claimed that he became involved with the Tamil cause in India and subsequently became politically active in the cause of the liberation of Sri Lankan Tamils and joined the Naam Tamilar Party (NTP). His evidence was that the major political parties in India opposed the NTP. He claimed that because of his involvement in the NTP cause, he was apprehended, manhandled and tortured without proper documentation by police on a few occasions. He gave evidence to the delegate that the police had threatened him and had filed false cases against him due to his support for Sri Lankan Tamils. The applicant claimed that he feared persecution if made to return to India on this basis.

7    The delegate refused the applicant’s protection visa application. The delegate was not satisfied that the applicant’s claims of political involvement were established. The delegate noted that there was a lack of evidence other than the appellant’s own testimony. The delegate found (as written):

Based on the above, including I am not satisfied that the applicant is a member of the Naam Tamilar Party, it follows that I am not satisfied that the applicant has been detained on any occasion by the Tamil Nadu State Police. I am not satisfied that he has been beaten, manhandled or otherwise abused by them, and I am not satisfied that he has ever been threatened by them. …

8    The delegate also noted a lack of evidence for several other claims made by the applicant as a reason for refusing the protection visa.

THE TRIBUNAL’S DECISION

9    The applicant provided the Tribunal with a copy of the delegate’s decision. On 6 November 2019 the Tribunal informed the applicant that it could not make a favourable decision based only on the material the applicant had provided to it and invited the applicant to a hearing. The applicant did not provide any further documents in support of his application in advance of the hearing before the Tribunal.

10    The hearing was held before the Tribunal on 17 December 2019. The applicant had the assistance of a Tamil interpreter. At the hearing, the applicant gave evidence that he did not feel he would be safe if he returned to India but did not give specific particulars other than that he had participated in protests in support of Sri Lankan Tamils in the past. He also gave evidence that he felt returning to India would affect his mental health.

11    In its reasons, the Tribunal expressed extensive concerns about the credibility of the applicant’s evidence. The Tribunal made several observations about inconsistencies in the evidence the applicant gave. Ultimately, the Tribunal found that (at T[38]):

38     Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth when claiming to hold fears, and concerning his character and past harm, upon which he has based his protection claims.

12    With respect to the applicant’s claimed circumstances and past harm when in India, the Tribunal found (at T[39]):

39     …While [the Tribunal] is prepared to accept that some Sri Lankan Tamils moved into his family home area and that he may have been sympathetic to their plight, it does accept that he considers himself close to or aware of the issues facing Sri Lankan Tamils as claimed. It does not accept that he wanted to or did work to support Tamil causes, nor that he joined any political organisations or the NTP, nor that he attended meetings or attended/organised protests or was an active member or even low-level member or supporter of the party. It does not accept that he was imputed or believed by the authorities to have any such involvement, nor that he was warned/detained/arrested/tortured or otherwise harmed or subjected to adverse interest from the authorities. It does not accept any claims flowing from this, including attempted police complaints, false cases, nor that he was unable to make a complaint to the police or to other organisations about the behaviour against him. …

13    With respect to the applicant’s claims of fear for his future in India, the Tribunal found (at T[41]):

41     The Tribunal does not accept that the applicant has a genuine fear of, nor that he faces a real chance or a real risk of, being apprehended, tortured, and killed by the police at the instigation of the ruling party or other major political parties due to his political affiliation and opinion. It does not accept that there is any reason for the authorities (or a neighbour) to have an adverse interest in the applicant or for him to face harm, whether due to his own activities, or because of anyone else’s activities. The Tribunal does not accept that he has or will have the interest or motivation to engage in political activities in India. It does not accept any claims flowing from these claims.

14    For these reasons, the Tribunal found that the applicant did not satisfy the criteria set out in either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) and accordingly, affirmed the decision of the delegate not to grant a protection visa.

PRIMARY JUDGE’S DECISION

15    The applicant sought judicial review in the Circuit Court on two grounds, expressed in substance as follows:

(1)    the Tribunal failed to provide the applicant with adequate opportunity resulting in a miscarriage of justice and the violation of the principles of procedural fairness; and

(2)    the Tribunal failed to consider the correct social group to which the applicant belongs and therefore applied an incorrect test for the need to grant a protection visa.

16    The first ground was particularised by reference to the Tribunal’s alleged failure to adjourn the hearing despite accepting that the applicant could have been nervous throughout the proceeding. In dismissing the first ground, the primary judge observed that the applicant’s claim that the Tribunal acted unreasonably by not adjourning the hearing to a later date was necessarily fact dependent. The primary judge found that: (1) there was no evidence that the applicant had sought an adjournment; (2) there was a nearly three-year period between the delegate’s decision and the Tribunal hearing during which time the applicant could have prepared arguments and evidence in support of his application; (3) the applicant was on notice that the whole of his account was in issue; and (4) the Tribunal’s preparedness to accept that the applicant was nervous was made in the context of its credit findings and did not suggest that the applicant was unable to articulate his claims before the Tribunal. Accordingly, the primary judge found that the Tribunal’s decision not to consider an adjournment was not legally unreasonable.

17    Regarding the second ground, the primary judge found that the applicant had failed to establish jurisdictional error by reason of the Tribunal failing to consider the applicant’s claim to fear harm on the basis of his membership of a particular social group. The applicant contended that his claim based on social group was independent of and separate to his claim to fear harm on the basis of his political opinion. The primary judge found this ground was misconceived. The particulars relied upon before the primary judge defined the applicant’s “correct social group” as being “Indian citizen of Tamil ethnicity, young male, worker of NTP alleged to have links with banned LTTE organisation in India and [as] a protestor of NTP due to its political opinion”. The applicant contends that “these aspect” put together were not considered by the Tribunal. The primary judge found that the applicant’s protection visa application did not include any claim to fear harm due to membership of a particular social group. The claim advanced before the Tribunal was expressly confined to a fear of harm if returned “due to my political affiliation and opinion”: PJ[23].The primary judge also noted that the basis of the applicant’s claim was similarly confined in his interview before the delegate. The primary judge found that the applicant did not advance a claim based on alleged membership of a social group. Accordingly, there was no error on the part of the Tribunal in failing to engage with a contention that was not an essential integer of the claim advanced. The primary judge observed that the Tribunal had engaged in an ‘active intellectual process’ and ‘gave genuine consideration’ to the applicant’s claims before affirming the delegate’s decision: PJ[24]. The primary judge noted that the Tribunal had come to its conclusion on the basis of adverse credibility findings and independent country information. The primary judge added that in any event the factual premise that the purported claim based on social group was predicated was rejected — the Tribunal did not accept the applicant had any involvement with the NTP or had been imputed to have such involvement. The Tribunal was under no obligation to consider a claim in these circumstances whether or not the claim had been expressly articulated or one which arose in the materials: PJ[26].

18    Accordingly, the primary judge summarily dismissed the applicant’s judicial review application pursuant to r 44.12 of the FCC Rules, with costs. At the time of this decision, r 44.12(1)(a) of the FCC Rules provided for a show cause procedure whereby an application could be summarily dismissed if the court was not satisfied that the application raised an arguable case for the relief claimed. This was the basis upon which the primary judge summarily dismissed the judicial review application.

LEAVE TO APPEAL AND DRAFT NOTICE OF APPEAL

19    In summary, the grounds for the application for leave to appeal are that the primary judge erred by dismissing the case at the show cause hearing by holding that:

(1)    there was no jurisdictional error; and

(2)    there was no jurisdictional error in failing to consider the applicant’s alleged claim based on belonging to a social group.

20    Ground 1 is particularised by reference to information put to the applicant pursuant to s 424A of the Migration Act in the course of the Tribunal hearing. The applicant claims that the information originated from an external source not produced by the applicant, and as such the requirement under s 424AA(1)(b)(iii), that the Tribunal advise the applicant that he could seek additional time to comment or respond to the information, was enlivened. The applicant contends that he was not advised he could seek additional time to respond and that in failing to advise the applicant so, the Tribunal made a jurisdictional error.

21    Ground 2 is particularised by characterising the claims the applicant made based on his alleged membership of NTP, which were framed as fear of harm on the basis of political affiliation and opinion, as being claims for fear of harm based on membership of a social group. On this basis the applicant contends the Tribunal failed to, or failed to adequately, consider the claim advanced.

22    The applicant repeats these two grounds in his draft notice of appeal.

LEAVE TO APPEAL

23    The principles which apply to an application for leave to appeal from an interlocutory decision are well established. The Full Court summarised these principles in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] as follows (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.

24    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 the decision to be wrong: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7] to [8] (Flick J).

CONSIDERATION

Ground 1 — jurisdictional error

25    By his first ground the applicant claims that the Tribunal relied on information from an external source not produced by the parties when putting a question about the name of an NTP candidate, and that he should have been provided with additional time to comment or respond to that information per s 424AA(1)(b)(iii) of the Migration Act. He claims that he was unaware of any right to seek additional time to respond and had he known he was able to request such additional time he would have done so.

26    The claim that the Tribunal’s decision was affected by jurisdictional error due to a failure to comply with s 424AA of the Migration Act was not put to the primary judge. Leave is required for the applicant to rely on this as a new ground: VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] to [48] (Kiefel, Weinberg and Stone JJ).

27    The Minister submits that such leave should be refused, on the basis it would not be ‘expedient in the interests of judgment to do so’ as the proposed ground has no merit: VUAX at [46] to [49]. I agree. The Tribunal recorded that it put the information about which complaint is now made to the applicant ‘pursuant to s.424AA of the Act’ (at T[27]). In the absence of a transcript of the hearing, there is no reason to doubt that the Tribunal complied with the procedure set out in s 424AA as stated in its reasons: SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] (McKerracher J); GFV18 v Minster for Home Affairs [2019] FCA 1817 at [10] (Bromwich J).

Ground 2 — finding of no jurisdictional error in consideration of social group

28    By his second ground, the applicant seeks to reagitate ground two of the judicial review application in the Court below. This ground is lacking in merit for the reasons given by the primary judge. The applicant has not demonstrated any error in the approach taken by the primary judge. Indeed, the applicant has not attempted to establish error but instead simply repeated the argument made below.

29    Leave to appeal must be refused. The applicant's grounds are not meritorious. The decision at first instance is not attended by sufficient doubt to warrant its reconsideration.

30    For completeness, and for the benefit of the applicant, I will address some discrete matters that were raised by the applicant that were not specifically directed to the grounds identified in the application. 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 taken this into account when considering the oral submissions made by the applicant at the hearing. The applicant did not file written submissions. He did, however, include material in the nature of submissions in his affidavit sworn on 5 September 2020 (as written):

3    I state that the corroborative evidence , I furnished in relation to treatment of Nam Tamil Party leaders and cadres a pro LTTE lobby group before the Tribunal was not properly considered . I state that even without looking at the contents of the corroborative evidence it was brushed aside on grounds of credibility in relation to my evidence .

4    I further state that my evidence was wrongly interpreted by the Tribunal.

31    At the hearing, the Minister addressed the two assertions made by the applicant in his affidavit as follows. The first assertion, that proof which the applicant had furnished to the Tribunal was not properly considered, was refuted by the Minister. The Minister submitted that in fact no further evidence had been filed with the Tribunal or in the court below. There is no material before me to demonstrate that “corroborative evidence” was filed in the Tribunal or in the Court below. The second assertion, that the applicant’s evidence was wrongly interpreted by the Tribunal, was refuted by the Minister on the basis that the applicant had not particularised or given evidence in relation to any alleged errors in the wrongly interpretation of his evidence. There was no material before me against which to assess the assertion in the applicant’s affidavit that his evidence was wrongly interpreted before the Tribunal.

32    The applicant acknowledged that the evidence that he had been able to provide may have been insufficient, but reiterated his view that the Tribunal failed to adequately consider such evidence as there was. The applicant’s contention was not supported by particulars or by reference to the material before the Tribunal.

33    Apart from the matters in his affidavit, the applicant’s oral submissions were directed to his personal circumstances rather than to establishing jurisdictional error. He submitted that he did not have enough time to advance his claims at the time of the early considerations of his applications. He said he could not get help from anyone in India and he put in all the documents to which he had access. He complains that he does not understand how previous decision makers could have arrived at the decisions they did. He explained that at the relevant time, he had depression. He said that his mother had passed away and he could not attend the funeral. He said he was still struggling with depression. Leaving to one side whether the applicant raised any of these matters before the primary judge, if leave to appeal is granted, there is no evidence to support the assertions the applicant made in his oral submissions.

34    Taking all of the above into consideration, I am not satisfied that the primary judge’s decision is attended by sufficient doubt. The applicant has not established that the primary judge’s decision to dismiss both grounds of the judicial review application was attended by error.

35    I am also not satisfied, even assuming the decision to be wrong, that there would be substantial injustice if the application for leave was refused. I am sympathetic to the applicant’s dismay at the refusal of his protection visa application and the dismissal of his judicial review application, however, the applicant’s submissions on this application were in substance an entreaty for the Court to engage in impermissible merits review. This application must be dismissed with costs.

CONCLUSION

36    For these reasons, the application for leave to appeal must be dismissed with costs.

Associate:

Dated:    23 November 2023