FEDERAL COURT OF AUSTRALIA

AAP20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 21

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to 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.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION AND BACKGROUND

1    This is an appeal from a judgment of the (then) Federal Circuit Court of Australia (Circuit Court): AAP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1003 (PJ). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse to grant the appellant a Protection (Class XA) (Subclass 866) visa.

2    The appellant is a citizen of Cameroon and arrived in Australia in 2016 on a Temporary Short Stay (Class GA) (Subclass 400) visa. Subsequently, on 25 November 2016, the appellant applied for the Protection visa. The appellant made a number of claims in support of that application. Those claims may be summarised as follows:

(1)    he is a member of the Social Democratic Front, the ‘opposition’ to the Government of Cameroon, and he took part in an anti-Government demonstration in 2008 (the demonstration);

(2)    on the day of the demonstration, he was hit, lost consciousness, and was taken to hospital;

(3)    the police arrested and tortured his uncle until he died;

(4)    the appellant left the country because the police were looking for him to kill him;

(5)    he will be arrested and killed if returned to Cameroon; and

(6)    he now feels safe in Australia.

3    The delegate of the Minister refused to grant the appellant a protection visa. The appellant subsequently applied to the Tribunal for merits review of the delegate’s decision. On 26 September 2019, the Tribunal invited the appellant to attend a hearing, scheduled for 15 November 2019. On 6 November 2019, the appellant provided certain further materials to the Tribunal. The appellant attended the hearing on 15 November 2019, and was assisted by a French interpreter. Following the Tribunal’s decision, the appellant applied for judicial review in the Circuit Court. That application was refused on 12 May 2021.

4    The appellant appealed from this decision on 31 May 2021. This appeal was amongst the cohort of matters which were delayed an allocation for hearing due to restrictions on in-person hearings during the Covid-19 pandemic, bearing in mind that the appellant was not in immigration detention.

5    At the hearing of this appeal on 10 November 2023, the appellant did not have a copy of the appeal book with him. While the Minister stated that the appeal book had been sent by email and in hard copy on 12 July 2021, the appellant said that he could not remember if he had received a hard copy of the appeal book and could not locate any email attaching the appeal book.

6    In the circumstances and given the delay between sending the appellant the appeal book and the hearing of the appeal, I considered that the appropriate approach was to take a short adjournment so that a copy of the appeal book could be prepared and provided to the appellant before proceeding with the hearing of the appeal (I note that in like circumstances where there is a significant delay between the provision of documents and the hearing, it would be helpful if the solicitors for the Minister were to confirm with an unrepresented applicant that she or he has the documents). In addition, I granted leave to the appellant to file and serve written submissions in support of his appeal by 1 December 2023, to which the Minister was granted a right of reply.

7    On 7 December 2023, orders were made by consent extending the time for the appellant to file written submissions to Friday 15 December. While the appellant did not ultimately file any written submissions, he made oral submissions in support of his appeal as I shortly explain.

8    For the reasons that follow, the appeal is dismissed. The appellant is to pay the Minister’s costs fixed in the amount of $5,000.

2.    THE TRIBUNAL’S DECISION

9    On 10 December 2017, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.

10    After setting out the criteria for a protection visa and the relevant factual background, the Tribunal summarised the appellant’s claims and had regard to certain country information. The Tribunal’s primary findings may be summarised as follows.

(1)    The Tribunal found that there were significant inconsistencies in the appellant’s claims and that the appellant was not generally a credible witness (at [29]), given that (at [43]-[52]):

(a)    evidence as to the ease with which he was able to depart Cameroon was not consistent with the appellant’s claim that authorities sought to cause him harm;

(b)    aspects of his evidence were inconsistent, not supportive of his claims, and vague and lacking in detail; and

(c)    certain evidence produced by the appellant was fraudulent.

(2)    The Tribunal found that the appellant’s role in the 2008 demonstration was “peripheral and minor” (at [39]), and noted that the appellant had not taken part in any other demonstrations, which “does not seem consistent with him being a person of interest to the authorities” (at [38]).

(3)    The Tribunal did not accept that the appellant “was escaping persecution in Cameroon because he is a member of the [Social Democratic Front] who took part in an anti-government demonstration in February 2008 and was wanted by the authorities” (at [60]).

(4)    The Tribunal did not accept that the appellant was injured or hospitalised during the protests (at [60]).

(5)    The Tribunal did not accept that the appellant had come to the adverse attention of the Cameroon authorities (at [60]).

(6)    The Tribunal did not accept that the appellant had been in hiding until he departed Cameroon in 2016 (at [60]).

11    Having made those findings, the Tribunal found that it was not satisfied that the appellant is a person to whom Australia owes protection obligations under s 36(2)(a) of the Migration Act 1953 (Cth) (the Refugee Convention criterion); nor for the same reasons was the Tribunal satisfied that there were substantial grounds for believing that there was a real risk the appellant would suffer serious harm if he were returned to Cameroon for the purposes of s 36(2)(aa) of the Act (the complementary protection criterion). Accordingly, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa (at [61]-[69]).

3.    THE PRIMARY JUDGE’S DECISION

12    On 3 January 2020, the appellant applied to the Circuit Court seeking judicial review of the Tribunal’s decision. The two grounds of judicial review relied upon before the primary judge were that:

1.    The Tribunal denied me procedural fairness.

2.    The tribunal committed an error of law.

13    In addition, under the heading “final orders sought”, the appellant stated that:

Proper consideration of country information. I will provide further particulars.

The primary judge appropriately treated this as a third ground of review (PJ at [2]).

14    Before addressing the grounds of review, the primary judge correctly explained the limitations upon the Court’s capacity to set aside a decision of the Tribunal at [6]-[8] as follows:

The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error. An error may constitute a jurisdictional error where the Tribunal:

(a)    identifies a wrong issue;

(b)    asks the wrong question;

(c)    ignores relevant material; or

(d)    relies on irrelevant material,

in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error, as may unreasonableness.

The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision.

The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function.

(Citations omitted.)

15    The primary judge dismissed all three grounds in a succinct and well-reasoned judgment. The primary judge also noted that the appellant raised various issues orally, but found that no error arose in relation to those complaints (at PJ [2] and [31]-[33]).

16    As concerns ground one, the primary judge held that the appellant was afforded a proper opportunity to participate meaningfully in the review, and had not been denied procedural fairness (at [13]). The salient aspects of the primary judge’s reasons for reaching that conclusion may be summarised as follows (at [12]).

(1)    The Tribunal invited the appellant to attend a hearing before it, and the appellant attended the hearing, which lasted approximately three and a half hours.

(2)    A French/English interpreter was provided at the Tribunal hearing.

(3)    The Tribunal’s findings concerning the appellant’s lack of credibility were similar to those found by the delegate, including with respect to some documents found not to be genuine (the false documents issue). As such, the primary judge held that the appellant was properly on notice of issues concerning his credit from the date of the Delegate’s decision.

(4)    The Tribunal had reached its findings about the appellant’s credit based upon its extensive questioning of the appellant. In particular, the primary judge found that the Tribunal raised with the appellant certain inconsistencies in his claims and the false documents issue, and relied on the appellant’s responses in forming its conclusions.

(5)    It is clear from s 424A(3)(a) of the Act that, subject to certain exceptions which did not apply to the appellant’s case, the Tribunal is not required to afford the appellant an opportunity to comment on country information.

17    With respect to ground two, the primary judge held that the Tribunal had not committed an error of law. In reaching that conclusion, the primary judge held (at [18]) relevantly that:

(1)    the Tribunal asked itself the correct questions and correctly identified the applicable law and policy;

(2)    the Tribunal properly understood the basis of the appellant’s protection claims which centred around his alleged involvement with the Social Democratic Front and his claim to have attended a protest in 2008 organised by the Social Democratic Front;

(3)    in taking into account various sources of country information, extensively questioning the appellant and explaining in sufficient depth the corresponding findings, the Tribunal actively engaged in the review, genuinely considered the relevant issues, and considered the entirety of the appellant’s claims; and

(4)    the Tribunal did not demonstrate any bias.

18    With respect to ground three, the primary judge held that the Tribunal did not err with respect to its consideration of certain country information. Essentially, the appellant’s complaint under this ground before the Circuit Court was that the Tribunal failed to consider certain country information provided by him in support of his case (the further country information), namely (PJ at [21] and [23]):

(1)    President Trump’s message to the Congress of the United States dated 31 October 2019;

(2)    video evidence as to how Cameroonian forces have been making people disappear;

(3)    video footage and news reports from prominent news outlets like the Guardian and the Post;

(4)    an article following the 2008 demonstration and the movement of Cameroon youths, together with the name of websites where full details of these events could be found; and

(5)    pictures of Cameroonian youths in the 2008 demonstration.

19    The appellant submitted before the primary judge that this evidence demonstrated certain “human rights violation[s]” in Cameroon, and that the Tribunal erred in not giving consideration to that information: PJ at [21].

20    The primary judge dismissed ground three, relevantly holding that:

(1)    the choice, interpretation, accuracy and weight of country information are matters for the Tribunal, with which a Court may interfere only in very limited circumstances: at [24], citing NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13] (Gray, Tamberlin and Lander JJ);

(2)    a Court may infer that a matter not mentioned by the Tribunal was considered by the Tribunal not to be relevant, rather than that the matter was ignored or overlooked, given that the Tribunal is required under s 430 of the Act to refer only to evidence in its reasons which it considered to be relevant or material: at [25], citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ); and

(3)    the correct inference to draw from the Tribunal’s failure to mention the material provided by the appellant is that the Tribunal considered those materials but considered that they were not relevant or material: at [27].

21    Accordingly, the primary judge held that the Tribunal’s failure to specifically comment on the further country information did not establish that the Tribunal had failed to properly consider it: at [28]. Among other things, insofar as the further country information related to the 2008 demonstration, the primary judge found that the Tribunal did not dispute that the 2008 demonstration took place, or that the 2008 demonstration were initiated by the Social Democratic Front: at [27]. As such, the primary judge found that the appellant’s materials did not contradict any aspect of the Tribunal’s decision in any fundamental manner. In those circumstances, and given that the Tribunal’s reasons were based on inconsistencies in the appellant’s claims and doubts about his credibility, the primary judge held that it was “difficult to see how a consideration of the [further] country information … could have otherwise ultimately influenced the Tribunal decision”: at [29].

22    Finally, the primary judge noted that the appellant raised several factual matters in oral submissions: at [31]. The primary judge held that the substance of these matters was considered by the Tribunal, and that those were factual matters for the Tribunal to consider, not the Court: at [32], citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 and 281-282 (Brennan CJ, Toohey, McHugh and Gummow JJ). The primary judge therefore held that no error had been established by the appellant in his oral submissions: at [33].

4.    DISPOSITION OF THE APPEAL

23    The notice of appeal identifies two separate grounds, being:

1.    The Tribunal made a jurisdictional error.

2.    The Federal Circuit Court didn’t decide my case properly.

24    The appellant appeared before me and made oral submissions with the assistance of a French/English interpreter. In his submissions, the appellant also contended that the materials provided by him to the Tribunal in support of his case were not taken into consideration by the Tribunal, and that this was an error. These submissions mirrored the third ground of judicial review raised by the appellant before the primary judge. Bearing in mind that the appellant was not represented and not an English speaker, I also treated that submission as identifying a third ground of appeal, namely that the primary judge fell into error in failing to find that the Tribunal fell into error by failing to consider the further country information.

25    In addressing the grounds of appeal, I have borne in mind the difficulties the appellant faces as a non-English speaker and an unrepresented litigant. However, as Charlesworth J held in Sadyal v Minister for Home Affairs [2019] FCA 1462 at [22]-[23]:

The difficulty for [the appellant] is that his grounds of appeal are not particularised and are largely uninformative. In the absence of written and oral submissions, the Court cannot comprehend the nature of the appealable error the primary judge is said to have made. Whilst considerable latitude may be extended to a self-represented litigant … particularly when interpreting grounds of appeal, it is not for the Court to scrutinise the reasons for judgment of the primary judge to identify errors that an appellant has made no attempt at all to articulate.

The appeal should be dismissed on that basis alone.

26    As the Minister submits, that statement is equally apt to apply to the present case, at least with respect to grounds one and two, which merely assert error without identifying any specific error. That, as held in Sadyal, would alone suffice to dismiss the grounds.

27    Further, ground one asserts an error only by the Tribunal. However, this Court is hearing an appeal from the Circuit Court and as such, must decide whether the primary judge fell into error. It is not a fresh hearing on whether or not the Tribunal made a jurisdictional error.

28    That said, as the Minister fairly submits, ground one could (and in my view should) be construed as challenging the primary judge’s reasons for failing to find jurisdictional error on the part of the Tribunal in considering ground two of the judicial review application (being that the “Tribunal committed an error of law”). Understood in that way, ground one of the appeal must be rejected. The primary judge, in a thorough and cogent manner, explained why no jurisdictional error was made by the Tribunal. His Honour explained that, as the appellant is self-represented, the Court ought to remain alert to the possibility of legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] (Mortimer J, as her Honour then was). His Honour then outlined several common categories of jurisdictional error at [18], and explained why the Tribunal had not committed any such error in this decision. His Honour’s reasons for so holding are considered and detailed. I gratefully adopt and agree with his Honour’s reasoning, and have nothing further to add. Ground one is dismissed.

29    Quite apart from the lack of particularity, ground two fails for similar reasons. No reason has been advanced as to why the primary judge did not decide the appellant’s case properly. Nor, as the Minister submits, is there any basis for contending that the primary judge failed to afford the appellant procedural fairness. To the contrary, the appellant:

(1)    filed written submissions before the primary judge, which were reproduced in full in the primary judgment (at [21]) and considered carefully by the primary judge;

(2)    was afforded an opportunity to file further documents prior to the hearing; and

(3)    attended the hearing in the Circuit Court and made oral submissions before the primary judge with the assistance of an interpreter, which were considered carefully by the primary judge in his Honour’s reasons.

30    Ground two must therefore also be dismissed.

31    Ground three raises the question of whether the primary judge erred in holding that the Tribunal did not err with respect to its consideration of certain country information. Specifically, the appellant provided certain country information to the Tribunal. The Tribunal did not refer to that information during the balance of its reasons.

32    I agree with the primary judge that no jurisdictional error is disclosed by the Tribunal’s failure to expressly consider the further country information in its reasons. As the primary judge explained, s 430(1)(c) of the Act imposes an obligation on the Tribunal only to set out “the findings on any material questions of fact”. However, that provision does not require the Tribunal to address all factual claims made by an appellant. Rather, s 430(1)(c) of the Act entitles a Court to “infer that any matter not mentioned … was not considered by the Tribunal to be material”: Yusuf at 346 (McHugh, Gummow and Hayne JJ). It is for the appellant to establish that a matter was ignored or overlooked by the Tribunal, rather than simply considered immaterial: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] (the Court). The appellant also bears the burden of proving that any failure to consider a matter was material to the Tribunal’s decision in that “compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ); see also MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ) approving SZMTA.

33    I agree with the primary judge that in this case, the appropriate inference to draw is that the Tribunal did not consider that the further country information was material. This is because the further country information could not have assisted his case before the Tribunal. As the primary judge held (at [26]), that country information related to “dangers in Cameroon generally” and the 2008 demonstration, and was not information personal to him. However, the Tribunal did not doubt the general dangers in Cameroon, or the existence of the 2008 demonstration. Rather, the Tribunal rejected the appellant’s claims to fear persecution on the basis of matters personal to his testimony and its assessment of his credibility. These matters included (Tribunal at [29], [39], [43] and [60]):

(1)    “significant inconsistencies in [his] claims”;

(2)    the Tribunal’s findings that he was “not a credible witness” and that the documents on which he relied in support of his alleged role in the Social Democratic Front were “false documents … manufactured to support his claim for protection”;

(3)    the Tribunal’s findings that his role in the 2018 demonstration “was peripheral and minor"; and

(4)    the Tribunal’s finding that it did not accept that he had come to the attention of the Cameroon authorities.

The further country information, not being information personal to him, therefore could not have assisted the appellant in overcoming those findings. In these circumstances, the appropriate inference to draw is that the Tribunal did not consider that the further country information was material and therefore did not refer to that information in its decision. Ground three is therefore not made out.

34    Finally, in oral submissions, the appellant asked for the Court to be lenient towards him. He submitted that there was real violence in Cameroon, and asked that the Court check social media to confirm that violence. It can readily be understood that the appellant would seek to persuade the Court to accept the credibility of his claims and feels strongly that the Tribunal was wrong to reject them.

35    However, those submissions misunderstand the limited role of the Court determining an application for judicial review, which the primary judge explained at [6]-[8] of the primary judgment. As the Minister correctly submitted, neither this Court nor the Circuit Court has jurisdiction to grant the appellant a visa or to assess the merits of his claims to fear persecution or serious harm: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). Likewise, it is beyond the jurisdiction of the Court to make an assessment of the security situation in Cameroon, based on social media or other material. The jurisdiction of the Circuit Court was confined to deciding whether the Tribunal’s decision was made lawfully under the Act or whether it made a jurisdictional error (described, in lay terms, as a serious and material legal error). In turn, on an appeal, this Court must decide whether the Circuit Court wrongly held that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s visa application was required to be assessed, or if it failed to consider a substantial claim to fear harm made by the appellant: see, generally, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court). It follows that the appellant’s submissions as to the security situation in Cameroon and his fears of harm if returned do not provide a basis on which this Court could grant the appeal against the primary judge’s decision.

5.    CONCLUSION AND COSTS

36    The Minister sought his costs fixed in the amount of $5,000, in the event that he was wholly successful in defending the appeal, as I have in fact held.

37    Rules 40.43(1)(a) and 40.43(3)(a) of the Federal Court Rules 2011 (Cth) (FCR) provide that, where an appeal from the Federal Circuit and Family Court of Australia (Division 2) (formerly the Federal Circuit Court) in respect of a migration decision is dismissed after the hearing, the Minister is entitled to costs mentioned in item 15.2 of Schedule 3 of the FCR, being $7,965. The Minister submits that an order fixing costs in the amount of $5,000 is appropriate given that the sum is less than the amount that can be claimed in a Short Form Bill, and the amount sought is reasonable and “proportionate to the nature, including the complexity, of the case”: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 at [18] (Kenny J). As the Minister submits, the Court retains a broad discretion in relation to costs, and it is permitted and open to fix costs in appropriate cases: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29]-[30] (Griffiths J). I am satisfied, for the reasons provided by the Minister, that an order as to costs fixed in the amount $5,000 should be made.

Associate:

Dated:    19 January 2024