Aap20 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FCA 21

FEDERAL COURT OF AUSTRALIA

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

Appeal from: AAP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1003
Appeal number(s): WAD 131 of 2021
Judgment of: PERRY J
Date of judgment: 19 January 2024
Catchwords:  MIGRATION – appeal from (then) Federal Circuit Court decision dismissing an application for judicial review – no error apparent in primary judge’s decision, nor in Administrative Appeal Tribunal’s (the Tribunal) decision – where appellant provided country information to Tribunal which was not referred to in the Tribunal’s reasons – where appropriate inference is that the Tribunal did not consider the appellant’s country information to be material – no error established – appeal dismissed
Legislation:

Migration Act 1953 (Cth) ss 36(2)(a), 36(2)(aa), 424A(3)(a), 430

Federal Court Rules 2011 (Cth) rr 40.43(1)(a), 40.43(3)(a) of the 2011 (Cth); Schedule 3 item 15.2
Cases cited:

AAP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1003

BAX16 v Minister for Immigration and Border Protection [2018] FCA 181

Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165

Sadyal v Minister for Home Affairs [2019] FCA 1462

SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
Division General Division
Registry Western Australia
National Practice Area Administrative and Constitutional Law and Human Rights
Number of paragraphs 37
Date of last submission 10 October 2023
Date of hearing 10 November 2023
Counsel for the Appellant The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent Ms G Ellis of Sparke Helmore
Solicitor for the Second respondent The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 131 of 2021
BETWEEN:

AAP20

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent


ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

PERRY J

DATE OF ORDER:

 19 JANUARY 2024

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…

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AGLC
Aap20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 21
Case
[2024] FCA 21
Decision Date

CaseChat Overview and Summary

In the matter of Aap20 v Minister for Immigration, Citizenship and Multicultural Affairs, the appellant, a citizen of Cameroon, sought judicial review of the Administrative Appeal Tribunal's (AAT) decision to affirm the delegate's refusal to grant a protection visa. The appellant argued that the AAT did not properly consider the country information he provided, which he claimed should have influenced the outcome of his application. The Federal Circuit Court dismissed the appellant's application for judicial review, and he appealed this decision to the Federal Court. The Federal Court was tasked with determining whether the AAT's decision was legally sound, particularly regarding the alleged procedural unfairness and errors of law in not considering the country information.

The primary legal issues before the Federal Court were whether the AAT had denied the appellant procedural fairness and whether it had committed an error of law by not considering the country information provided by the appellant. The Court also needed to determine whether the AAT's decision was affected by jurisdictional error, such as ignoring relevant material or relying on irrelevant material. The Court's review was limited to identifying any jurisdictional errors in the AAT's decision, and it could not engage in merits review or reassess the weight given to the evidence by the AAT.

The Federal Court found that the AAT had not erred in its decision-making process. The Tribunal had provided the appellant with an interpreter and had extensively questioned him, allowing him to participate meaningfully in the hearing. The Court held that the Tribunal had not ignored relevant material but had instead made its findings based on the evidence and the appellant's responses during the hearing. The Court also noted that the AAT did not need to comment on country information, as required by statute, unless certain exceptions applied, which did not pertain to the appellant's case. Given these findings, the Court concluded that the AAT had not committed a jurisdictional error and dismissed the appeal.

The Federal Court dismissed the appeal and ordered that the appellant pay the Minister's costs in the amount of $5,000. The Court's decision affirmed the AAT's assessment of the appellant's claims and the weight given to the evidence presented. The Court's ruling underscored the limited scope of judicial review in migration cases, where the focus is on identifying jurisdictional errors rather than reassessing the merits of the case.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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. 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]). 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.) 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]). 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.

Ratio Decidendi

Legal Principle Established

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. 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. 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. 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. 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. 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.