Federal Court of Australia
BJN20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1456
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2. The appeal be dismissed.
3. The first and second appellants pay the first respondent’s costs fixed in the amount of $5,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Delivered ex tempore, revised)
BROMWICH J:
1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse to grant the appellants Protection (Class XA) (Subclass XA-866) visas.
2 The first appellant was the primary visa applicant, who was the only person who made the necessary protection claims. The second appellant is his wife. The third and fourth appellants are their Australian-born children. At the commencement of the appeal hearing, I made an order by consent that the first appellant be appointed as litigation representative for his children, the third and fourth appellants. The first appellant advised the court that his now 12-year-old son (the third appellant) had become an Australian citizen when he was 10 years old. During a short adjournment, counsel for the Minister was able to confirm that the third appellant became an Australian citizen in on 7 February 2022. I therefore made a further order by consent that the third appellant be removed as a party to this proceeding. The appellant confirmed that he was also representing his wife, which I note is formal only because there was nothing extra for her to say. In all the circumstances, it is convenient to refer to the first appellant simply as the appellant, as happened before the Tribunal and primary judge.
3 The primary judge summarised what had taken place before the Tribunal in some detail, with a combination of descriptive narrative and quotes from the Tribunal’s reasons over some five and a half pages. I incorporate that summary from J [10]-[30] by reference, without reproducing it, because only a portion is directly challenged in this appeal.
4 There were nine grounds of judicial review before the primary judge, some of them overlapping. His Honour addressed each either individually or in batches, as six topics, dismissing all of them, and thus the application for judicial review. His Honour also reached a global conclusion that the application for judicial review failed to identify any jurisdictional error and his Honour was unable to find any such error.
5 The Minister’s written submissions concisely and accurately summarise what took place before the primary judge as follows, omitting only court book references:
[18] The appellant applied for judicial review of the Tribunal’s decision on 27 March 2020. He advanced six overlapping grounds of review which, in essence, contended that the Tribunal:
(a) Failed to consider the pandemic and the Convention on the Rights of the Child (the CROC), that he was stressed, that he was a father of three children and overlooked his claim to be the son of a police officer.
(b) Failed to provide him with an interpreter at the hearing.
[19] The primary judge held that each of the appellant’s grounds failed to demonstrate any error because:
(a) The appellant never put forward any claims about the pandemic: [41].
(b) The appellant never mentioned anything about his mental condition and there was no evidence that he was unable to participate in the Tribunal hearing due to any mental health issues: [45]-[49], [91].
(c) The appellant never put forward any claims about the CROC or about his children: AB 368, [61]. The Tribunal was not required to consider any claims about the appellant’s third child because that child was not the subject of the delegate’s decision: [65].
(d) The Tribunal did not arrange for the appellant to be assisted by an interpreter because when asked whether he needed one, the appellant’s response was “no”: [69]-[70]. It was also notable and relevant that during the Tribunal hearing, the appellant did not raise any issues with the lack of an interpreter or seek an adjournment: [75]-[76].
(e) The Tribunal did consider the appellant’s claims about being the son of police officer. The appellant’s real complaint was in essence his disagreement with the Tribunal’s conclusion: [83]-[87].
[20] Accordingly, the primary judge dismissed the application with costs.
6 As will be seen, the only articulated challenge of substance advanced in this appeal concerns the asserted issue of the appellant’s mental health and related issues addressed by the primary judge, as summarised in the Minister’s submissions at [19(b)], reproduced above. The paragraphs of his Honour’s judgment identified in those submissions are reproduced below, along with several other paragraphs.
7 The notice of appeal contains the following three grounds, which I number for convenience as follows (verbatim):
[1] [I] am applicant for refugee visa review decision and I am authorised to make this affidavit as primary applicant requesting review of decision.
[2] I would like to bring your attention that I am genuine refugee and want to request you please review my whole file. Judge made Judicial error while asse[ss]ing my application.
[3] Judge ignored my mental health condition and overall my health issue.
8 The notice of appeal also asks this Court to “review the judgement and give a favourable result for application”, which does not contain any ground of appeal.
9 The appellant did not provide any written submissions in support of the above grounds of appeal. At the appeal hearing, the appellant made oral submissions that in substance reiterated his claims of mental health and related memory problems. He said that this accounted for differences between what he told the delegate and the Tribunal. He referred to not having any documents to put before the primary judge and therefore only being able to say things to his Honour as to these claims. He did not in terms point to errors on the part of his Honour, apart from repeating the substance of the third appeal ground reproduced above, namely that his Honour had ignored his claims. He also described the hardships he and his family were suffering due to not being allowed to work, and not being eligible for Medicare benefits, noting that his older son was in a better position due to becoming an Australian citizen.
10 The Minister submits that no appellable error is demonstrated by either of the first two grounds of appeal above because:
(a) The first appeal ground does not assert any error on the part of either the Tribunal or the primary judge. That is plainly correct and must be accepted, such that this ground must fail.
(b) The second appeal ground reflects a misunderstanding of the role of this Court in considering an appeal from an unsuccessful application for judicial review, because it is not part of this Court’s function to engage in a review of the merits of the appellant’s case, or to review his whole file. That too is plainly correct and must be accepted, such that this ground must also fail.
11 As to the third appeal ground concerning the appellant’s mental health and stress-related issues, the Minister relies upon the primary judge’s reasoning on this topic. The issue as presented by the appellant before the primary judge was summarised by his Honour at J [39] as being that the appellant was “suffering from mental health and stress related issues when he appeared at the Tribunal and this made it difficult for him to express what he needed/wanted to say to the Tribunal or to understand what was happening at the Tribunal hearing”.
12 The primary judge dealt with this aspect of the appellant’s case as follows, concluding that no jurisdictional error had been established:
[45] What the first applicant appears to be suggesting in grounds 2, 3B and 4 is that he suffers from a mental condition (anxiety and stress) which prevented him from being able to give evidence and present arguments. He also appears to be suggesting that his mental condition caused the Tribunal’s adverse credibility assessment. The first applicant repeated these claims in his oral submissions to this Court.
[46] Where an applicant in not mentally fit to participate in a hearing, the Tribunal will fall into jurisdictional error notwithstanding that it may not have been aware of any mental health issue or condition: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553.
[47] Here, however, there is no evidence that the first applicant was “unfit” or “unable” to participate in the Tribunal hearing as a result of any mental impairment or indeed at all. While the first applicant states that he does not have access to medical advice or treatment, in the absence of medical evidence the Court cannot be satisfied that he was unable to meaningfully participate in the hearing. The Tribunal’s decision clearly indicates that he did participate. He provided information asked of him and responded to matters put to him.
[48] Further, the Tribunal gave the first applicant an opportunity to explain any inconsistencies in his evidence. At no time did the first applicant state that he had any mental conditions which affected his ability to recall events. At no time did the first applicant refer to memory loss, stress or trauma to explain any inability to recall things. It is also noteworthy that the applicant had almost two weeks following the Tribunal hearing (and before the Tribunal handed down its decision) to raise any concerns with the Tribunal about the hearing or, indeed, any mental health condition. He did not so.
[49] On the basis of the evidence before it, the Court does not accept that the first applicant was unfit to participate in the Tribunal hearing such that he was denied an opportunity to give evidence and present arguments.
[50] Further, to the extent that the applicants may be suggesting that Tribunal’s finding that the first applicant was not a “witness of truth” was affected by jurisdictional error, the Court disagrees. Here, the Tribunal’s adverse credibility finding was based upon the fact that:
(a) the first applicant had provided an inconsistent account of his claims and when these were put to the [first] applicant he did not provide any detailed response (at [29]);
(b) the first applicant had delayed in applying for the visa and this indicated a lack of a subjective fear of harm (at [30]); and
(c) when put to the first applicant that nothing had actually happened to him previously in Pakistan, he agreed (something which contradicted his previous claims).
[51] Each of those matters had a logical and probative basis. Clearly, inconsistencies are matters relevant to the credibility of a witness. It is well accepted that a delay in applying for the visa is a relevant consideration when assessing whether an applicant’s claims are genuine. Finally, the fact that the first applicant conceded that nothing had happened to him previously (contrary to what he had claimed) was relevant to, and probative of, the assessment of the first applicant’s previous evidence. Ultimately, these matters provided a sound basis upon which to make the adverse credibility finding that the first applicant was not a “witness of truth”.
[52] To the extent that the first applicant now wishes to claim that these “inconsistencies” were a result of a mental condition, the Court does not accept this to be the case. As stated, the first applicant has advanced no evidence to this effect and no concerns of this sort were ever raised before the Tribunal.
…
[91] In relation to the first applicant’s “memory issue”, again, no evidence has been advanced to substantiate this concern. The fact that the first applicant “forgot to tell the Department about his third child” does not support an argument that the first applicant had or currently has memory issues or mental health concerns.
13 The Minister submits that the primary judge’s reasoning was both orthodox and consistent with well-settled principles, citing his Honour’s reference to the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 (Gray, Cooper and Selway JJ): see in particular [41]. I agree with this characterisation of his Honour’s approach, which is plainly apparent in the passages reproduced above.
14 The Minister submits that in these circumstances, no appellable error is demonstrated. I accept that submission as well. In particular, contrary to the assertion in the third appeal ground that the primary judge ignored the appellant’s asserted mental condition and his asserted overall health issues, his Honour succinctly but comprehensively addressed this as a judicial review issue going to the question of jurisdictional error, and found that it was not made out. Far from the reasons by the primary judge on this topic revealing error, I am of the view that his Honour’s treatment of this issue was correct.
15 As all three grounds of appeal have failed, the appeal must be dismissed. The appellant said that he could not afford to pay any costs order. I am not satisfied that this is a sufficient reason to depart from the usual order that costs follow the event. Accordingly, the two adult appellants must be ordered to pay the Minister’s costs.
16 The Minister seeks a lump sum costs order of $5,000, upon the basis that this is less than the amount of $7,965 that can be claimed in a short form bill for an appeal involving a migration decision that is dismissed after a hearing under item 15.2 in Schedule 3 of the Federal Court Rules 2011 (Cth); and submits that this sum is reasonable and proportionate to the nature of the case, including its complexity, citing Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; 290 ALR 288 (Kenny J) at [18]:
The starting point for the fixing of costs is the charges rendered by the applicant’s solicitors: Beach Petroleum at FCR 124; ALR 165 and Hamod v New South Wales [2011] NSWCA 375 at [820] per Beazley JA (with whom Giles and Whealy JJA agreed). The sum of costs fixed should also be proportionate to the nature, including the complexity, of the case: see Canvas Graphics Pty Ltd v Kodak (A’asia) Ptd Ltd [1998] FCA 23. As Beazley JA said in Hamod, at [820], citing, among others, Beach Petroleum at FCR 123; ALR 164:
[820] The approach taken to estimate the costs to be ordered must be logical, fair and reasonable … This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment … [Citations omitted.]
17 The Minister also relies upon the Court having a broad discretion in relation to costs, including being permitted to fix costs in appropriate cases, such as the present, citing BAX16 v Minister for Immigration and Border Protection [2018] FCA 181, where Griffiths J made the following apposite observations:
[29] In his written outline of submissions filed shortly before the hearing of the appeal, the Minister sought an order that the appellant pay his costs fixed in the sum of $6,439. The Minister relied upon Item 15.1(d) to Sch 3 of the Federal Court Rules 2011 (Cth) (2011 FCRs). The Court’s power to make an order for costs in a lump sum is to be found in r 40.02 of the 2011 FCRs. The Court has a broad discretion whether or not to make a lump-sum costs order, as is reflected in authorities such as Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority (No 2) [2014] FCA 444; 315 ALR 131 per Mortimer J and Saizeriya Co Ltd v Peregrine Management Group Pty Ltd [2005] FCA 1174 per Kenny J. There is also a relevant Practice Note – GPN-COSTS, which contains a section on lump-sum costs orders.
[30] There is a specific provision in r 40.43 of the 2011 FCRs which addresses a short form bill in a migration appeal, such as the present proceedings. The effect of this provision is that, if such a proceeding is finalised after a final hearing, the successful party may claim as costs and disbursements of the appeal the amount set out in item 15.1(d) of Sch 3 to 2011 FCRs. That is what the first respondent seeks here. I am satisfied that such an order should be made, noting that a similar approach was recently taken by White J in DSR16 v Minister for Immigration and Border Protection [2018] FCA 154.
18 I adopt those observations by Griffiths J in BAX16, and am satisfied that it is appropriate to make the fixed costs order that the Minister seeks, noting again that this order should be confined to the two adult appellants, the first appellant and his wife, the second appellant.
19 The appeal will be dismissed with an order that the first and second appellants pay the Minister’s costs fixed in the sum of $5,000.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. |
Associate:
