AWB16 v Minister for Immigration and Border Protection
[2019] FCA 1474
•9 September 2019
FEDERAL COURT OF AUSTRALIA
AWB16 v Minister for Immigration and Border Protection [2019] FCA 1474
Appeal from: Application for extension of time: AWB16 & Anor v Minister for Immigration & Anor [2018] FCCA 901 File number: NSD 508 of 2018 Judge: KATZMANN J Date of judgment: 9 September 2019 Catchwords: PRACTICE AND PROCEDURE — application for extension of time to appeal — where short period of delay and no question of prejudice but unsatisfactory explanation for delay and unmeritorious grounds
PRACTICE AND PROCEDURE — application for suppression order over affidavit evidence where disclosure would reveal confidential methods used to detect fraudulent activities
Legislation: Migration Act 1958 (Cth) ss 36(2A), 48A, 65, 438(1)
Federal Court of Australia Act 1976 (Cth), ss 37M, , 37AE, 37AF, 37AG, Pt VAA
Federal Court Rules 2011 (Cth), rr 1.39,36.03
Cases cited: El Ossman v Minister for Immigration and Border Protection (2017) 248 FCR 491
Hogan v Australian Crime Commission (2010) 240 CLR 651
Minister for Immigration and Border Protection v CTW17 [2019] FCAFC 156
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; 363 ALR 599; 93 ALJR 252; 163 ALD 38
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Tang v Minister for Immigration and Border Protection [2018] FCA 731
Date of hearing: 21 August 2019 Date of last submissions: 27 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 56 Counsel for the First Applicant: The First Applicant appeared in person Counsel for the Second Applicant: The Second Applicant appeared in person Counsel for the First Respondent: Mr G. Johnson Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 508 of 2018 BETWEEN: AWB16
First Applicant
AWC16
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
9 SEPTEMBER 2017
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and until further order, the “closed” affidavit of Michael John Minns affirmed 25 January 2018, consisting of 32 paragraphs and a number of unredacted documents not be published on the ground that the order is necessary to prevent prejudice to the proper administration of justice.
2.The application be dismissed.
3.The applicants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Introduction
Section 65 of the Migration Act 1958 (Cth) imposes a duty on the Minister to grant a visa applicant a visa if the application is valid and the Minister is satisfied that the applicant meets the criteria prescribed by the Act and Regulations. It also imposes a duty on the Minister not to grant a visa to a visa applicant if the applicant does not meet those criteria.
The applicants are Chinese nationals who applied for protection (class XA) visas but were unsuccessful in their applications both initially and on review in the Administrative Appeals Tribunal. After failing to persuade the Federal Circuit Court to set aside the Tribunal’s decision, they wish to appeal but they failed to file an appeal within the requisite period. They now seek an extension of time to appeal.
The applications for protection visas
In her application the first applicant, AWB16, claimed to fear harm if she were to return to China for several reasons: that she breached the one child policy (she had two daughters); that she had participated in pro-democracy protests in Guangzhou; and that after the Tiananmen massacre she had hidden students in her home who were suspected political dissidents. In an interview with a delegate of the Minister, AWB16 also claimed that she would be persecuted on return to China because she was a Christian who would proselytise; that she would be unable to find employment and support herself in China; and that she had been forcibly sterilised following the birth of her second daughter.
The second applicant, AWC16, is the husband of AWB16. He applied for his visa as a member of the same family unit (see Migration Act, s 36(2)(b)).
This was not the first time the applicants had applied for protection visas while they have been in Australia.
Apparently in their previous applications the applicants relied on the refugee criterion, previously appearing in s 36(2) of the Act, now in s 36(2)(a). I was informed that the original applications for protection visas were lodged soon after the couple arrived in Australia in the late 1990s, well before the Act was amended to include the complementary protection criterion, which now appears in s 36(2)(aa).
Section 48A of the Migration Act prohibits a failed asylum seeker from lodging a second protection visa application while in the migration zone. It is common ground, however, consistent with the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, that the applications in question were valid. In SZGIZ the Full Court construed s 48A to refer to the making of a further application based on the same essential criterion for the grant of a protection visa as an earlier unsuccessful application. The applications were lodged on 2 April 2013, before the Act was amended to overcome the effect of SZGIZ: see Minister for Immigration and Border Protection v CTW17 [2019] FCAFC 156.
Consequently, AWB16’s claims fell to be considered under the complementary protection criterion. This means that the Minister has to be satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of AWB16 being removed from Australia to a receiving country, there is a real risk that she would suffer significant harm as defined in the Act. “Significant harm” is defined in s 36(2A) of the Act in the following way:
A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
The Minister, through his delegate, was not satisfied that this criterion was made out and refused to grant the visas.
The application for review in the Tribunal
The Tribunal heard evidence from each of the applicants and a number of witnesses over two days a year apart. It also had regard to a body of documents, which included material supplied by the applicants as well as country information provided by the Department of Foreign Affairs and Trade.
On the first day of the Tribunal hearing, AWB16 withdrew her claim that she was a pro‑democracy supporter and had sheltered students who were perceived to be political dissidents. Indeed, she denied that she had ever participated in any pro-democracy or other political activities in China, although her claim that she was a pro-democracy activist was supported by a statutory declaration apparently bearing her signature which was submitted to the Refugee Review Tribunal in 1998. The Tribunal noted that this claim did not appear in her application for Ministerial intervention in 2009 and considered that its inclusion in the current application, prepared with the assistance of “a solicitor registered migration agent”, did not reflect well on her credibility.
The Tribunal was satisfied that the applicants were Chinese nationals who had no right to enter and reside in any other country. It was also satisfied that AWB16 had been “forcibly and brutally sterilised”. And it was satisfied that both she and her husband were practising Christians. The Tribunal was not satisfied, however, that the applicants had practised Christianity in China or AWB16’s concerns about her capacity to work, and therefore subsist in China, were justified.
The Tribunal expressed a number of concerns about the credibility of AWB16, based in part on inconsistencies in her several accounts and inconsistencies between her accounts and country information. It did not consider that she had told the truth about fundamental aspects of her claim. The Tribunal concluded that the applicants had fabricated some of their claims in both their initial and current applications for protection visas. The Tribunal was also concerned that the applicants had failed to familiarise themselves with the issues in the interview with the delegate and recorded in the delegate’s decision. It considered that this raised serious doubts about the genuineness of their claims to fear harm in China. In any case, it was not satisfied that AWB16 was at real risk of significant harm in China because of country information discussed at [45]–[48] and [71]–[72] of its reasons. Consequently, the Tribunal was not satisfied that the complementary protection criterion had been made out and affirmed the delegate’s decision.
The application to the Federal Circuit Court
The applicants applied to the Federal Circuit Court for judicial review, but the primary judge dismissed the application. In the concluding paragraph of his judgment his Honour summarised his reasons:
Having regard to the bases of the Tribunal’s decision, and in particular, its reliance on country information as applied to its acceptance of the basic assertions of fact, asserted claims made by the applicants and there being no evidence of any procedural unfairness, and in light of the fact that all of the grounds raised by the applicants only go to the merits of the Tribunal’s decision rather than its legality, I am not satisfied that there is a (scil.) jurisdictional error in the Tribunal’s decision.
The application to this Court
No notice of appeal was lodged within the time prescribed by the Federal Court Rules 2011 (Cth) (r 36.03). Some six days after the expiration of the period, the applicants applied for an extension of time to appeal.
In an affidavit filed in support of the application, AWB16 deposed that she did not agree with the decision of the Federal Circuit Court and “wish[ed] to do further review with your court and get a more fair decision”. She continued:
I delayed my further appeal application due because of my financial difficulty for the application fee which I was unable to afford within 21 days from the Federal Circuit Court of Australia. I could not get help in filling out all the forms required due to my limited English. I wish the court can [consider] my difficult situation and accept my application for further appeal.
The draft grounds of appeal read as follows:
(a)AAT and Federal Circuit Court failed to consider my explanation and supporting documents to support my appeal which I believe it is a legal error
(b)I am a Chinese citizen and Christian who will be facing persecution by Chinese government due to my belie[f]s
(c)I cannot go back to China since I am very scared to be sentenced and discriminated.
(d)AAT member and the Federal court did not well consider of my fears and persecution if return to my home country.
No submissions were filed in support of the appeal. At the hearing, both AWB16 and AWC16 spoke in support of their proposed appeal. AWB16 said that she was disappointed by the judgment below, that she and her husband believed that their claims were not thoroughly and carefully assessed by the Tribunal, and that the court did not consider their submissions “with care”. She also complained that the primary judge did not have regard to their documents and failed to take into account or properly consider the fact that Christians in China are physically abused and tortured by the Government. AWC16 confessed to their ignorance of the legal system and said that he was unable to comment on the decision of the primary judge. He told the Court he just feels that it was unfair.
The Court’s power to extend the time is conferred by r 1.39 of the Rules. The power is a broad one, subject to no express fetters. Like any power conferred by the Rules, however, it must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37M. Relevant factors affecting the exercise of the Court’s discretion include the length of the delay, whether there is a satisfactory explanation for it, whether the respondents have suffered any prejudice on account of it, and the merits of the proposed appeal. Where the delay is short and has been satisfactorily explained and where there is no prejudice, the Court will usually grant relief provided that the applicant can demonstrate that he or she would have a reasonably arguable case on the appeal.
Here, the delay is short and the Minister conceded he would suffer no prejudice if an extension of time were granted. Nevertheless, the Minister opposed the application. He raised questions about the nature of the explanation. Principally, however, he submitted that there was insufficient merit in the draft grounds of appeal to justify extending the time.
The explanation for the delay given by AWB16 in her affidavit is identical to the explanation considered by Moshinsky J in Tang v Minister for Immigration and Border Protection [2018] FCA 731. His Honour doubted whether such an explanation was adequate but expressed no concluded view. Rather, he chose to focus on the merits of the proposed appeal.
In the present case, I have great difficulty accepting the explanation. It appears to be formulaic and provides no detail. Furthermore, there was no indication that the applicants’ position had changed since the Tribunal hearing. Yet, on the face of things, the representation as to impecuniosity is inconsistent with the evidence given to the Tribunal that AWC16 is a skilled carpenter in great demand. From the bar table AWC16 told the Court that he no longer has a work permit but the affidavit filed in support of the application made no mention of this. In any event, since the couple have lived in Australia for 20 years or so and the Tribunal found that they had been “integrated within the Australian community”, it is difficult to believe that they could not find someone to help them fill out the necessary forms. The Tribunal described AWC16 as “an entrepreneurial businessman with strong interpersonal skills”. In these circumstances, I do not consider the explanation to be satisfactory.
That brings me to the merits of the proposed appeal.
The appeal is in the nature of a rehearing in which it is incumbent on an appellant to demonstrate error on the part of the primary judge: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11].
There is no apparent foundation for the claim made in the first ground of the draft notice of appeal.
In its decision record, the Tribunal referred to, and considered, the explanations given by both applicants as well as the documents they submitted. The Tribunal’s decision is lengthy and well-reasoned. With one possible qualification, the applicants did not point to any particular explanation, claim, or document that the Tribunal overlooked.
AWB16 referred to documents “about Christian practitioners who went back to China and were persecuted especially in the Wenzhou area”, from which the applicants come. She also said that currently all the crosses in Wenzhou churches were taken down. But the Tribunal noted that accompanying AWB16’s application were “multiple press releases and other downloads from the internet” relating to “the destruction of multiple crosses and even churches”, both registered and unregistered, in China and over 400 crosses in Wenzhou. The Tribunal also considered the oral evidence about these matters from AWB16 and two pastors. It accepted that during late 2014 and early 2015 a number of churches were demolished in Wenzhou and multiple crosses were removed from churches. But the Tribunal went on to refer to country information that the demolition program ceased in mid-2015 after the Beijing government ordered local authorities to stop demolishing churches and crosses. The Tribunal accepted the evidence of one of the pastors that “people are not allowed to stand on the street and hand out pamphlets” about joining an underground church.
Be that as it may, the Tribunal was not concerned with the question of whether there was freedom of religion in China or whether AWB16 had a well-founded fear of persecution because of her religion, as it would have been if she were able to rely on the refugee criterion. It was concerned with the question of whether AWB16 would be at risk of significant harm there as a necessary and foreseeable consequence of her removal from Australia. Based on country information and the nature of the activities in which the applicants had previously engaged, the Tribunal was not satisfied that the applicants would attract the attention of the authorities because of their Christian beliefs. It concluded that the chance that they would come to any harm on that account was remote.
In his reasons the primary judge observed that AWB16’s submissions “went to the bases upon which she claims that she and her husband would face difficulties if they were to return to China”, and said that it was beyond the court’s power to determine that issue.
His Honour was correct. Part 8 Div 2 of the Migration Act imposes considerable limits on the capacity of the Federal Circuit Court to review decisions of the Tribunal. To obtain the relief the applicants claimed, they needed to show that the Tribunal’s decision was affected by jurisdictional error.
Without more, and having regard to the Tribunal’s decision record and the judgment below, which is the only material before the Court about what transpired in those forums, this ground seems doomed to fail.
The second and third grounds are hopeless. They do not point to any error by the primary judge or, for that matter, the Tribunal. They merely repeat AWB16’s contention that she fears harm in China. Even if those fears are genuine, the Tribunal would have been obliged to refuse to grant the visa unless it was satisfied that there were substantial grounds for believing that the risk of significant harm was a real one.
The final ground does not take the matter any further. As the Minister submitted, it is non‑specific and appears to challenge the merits of the Tribunal’s decision. In view of the limits of its jurisdiction, it was not open to the Federal Circuit Court to consider the fears AWB16 professes to harbour. Nor was it open to the Federal Circuit Court to correct any erroneous findings of fact. Factual error on the part of the Tribunal would only require the intervention of the court if the decision were irrational, manifestly unreasonable (in that no reasonable decision-maker could have come to the same conclusion), illogical, capricious, arbitrary or made in the absence of good faith. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] Crennan and Bell JJ observed:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
None of these epithets could be applied in the present case. While a different decision-maker might have made different findings and come to a different conclusion on the same evidence, it could not be said that the findings and conclusions the applicants urged upon the Tribunal was the only ones open on the evidence. To the contrary, the Tribunal’s findings and conclusions were also open.
The applicants submitted in the application in the court below that their “genuine statements on the questions and doubts given in the hearing [had] not been embraced by the member of the tribunal in good faith”. But this was no more than an allegation that they should have been believed. The Tribunal’s reasons do not evince a want of good faith.
The certificate purportedly issued under s 438(1) of the Migration Act
The Minister drew the Court’s attention to another matter considered by the primary judge in his reasons.
A certificate had been issued purportedly under s 438(1) of the Migration Act and the Minister had put before the Federal Circuit Court some of the material to which the certificate referred. The material consisted of documents, some of which were redacted. His Honour said that, “at a very high level of generality”, the material concerned the examination of identification documents upon which the applicants relied to enter Australia.
I was informed that the certificate had not previously been disclosed to the applicants.
The primary judge decided not to admit the documents into evidence on the basis that they did not raise a real issue for determination. His Honour said that all the information concerning the authenticity of the documents was consistent with what the applicants had told the Department and the Tribunal and so would not have taken them by surprise. His Honour observed that one of the identification documents was found to have been a genuine document, which had been fraudulently altered, but that that information was expressly put to the applicants in a letter sent to them by the Tribunal on 6 January 2016. As for the redacted portion of the material, his Honour considered that it could not possibly have been relevant to any of the issues before the Tribunal.
Section 438 applies to a document or information where the Minister has lawfully certified that disclosure of any matter in the document or of the information would be contrary to the public interest or where the document, any matter in the document, or the information was given in confidence to the Minister or an officer of his Department. If a Tribunal is notified that s 438 applies to a document or information, the Tribunal may have regard to any matter in the document or to the information, and, in certain circumstances, it may disclose it to the applicant.
After the Federal Circuit Court judgment was published, the High Court unanimously held in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; 363 ALR 599; 93 ALJR 252; 163 ALD 38 that notification to the Tribunal that s 438 applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant for the review. By majority, however, the High Court held that a breach of that obligation will only amount to a jurisdictional error if the breach is material in that non-disclosure could deprive the applicant of the possibility of a successful outcome.
In the present case, the Tribunal did not refer to the s 438 certificate, the documents to which it related or the information it contained. In view of the matters canvassed by the primary judge, the Minister submitted that the primary judge’s approach accorded with the majority decision in SZMTA and that neither the non-disclosure of the certificate nor the admission into evidence of the documents revealed appealable error.
Although it did not arise for consideration on the notice of appeal, but because the applicants were unrepresented, the Minister sought to persuade the Court that the primary judge did not err in the way in which he dealt with these matters. To this end, the Minister tendered an affidavit affirmed by Michael John Minns on 25 January 2018 to which the certificate and the unredacted documents were annexed The Minister claimed that the contents of the affidavit were protected by public interest immunity but did not seek to argue the point. Rather, he submitted that the affidavit should be suppressed under Pt VAA of the FCA Act.
At the hearing I made an interim non-publication order over Mr Minn’s affidavit. That course is consistent with a line of authority which establishes that affidavits in support of public interest immunity claims may be received on a confidential basis as a means of ensuring that the Court’s procedures do not defeat the very public interest that the public interest immunity claims seek to protect: El Ossman v Minister for Immigration and Border Protection (2017) 248 FCR 491 at [30] (Wigney J). As Wigney J observed in that case, it is well-established that the Court may inspect the documents the subject of the claim without the documents being shown to the other parties.
At the time I made the interim non-publication order, I gave the Minister the opportunity to make submissions in writing in support of the application. After the Minister’s submissions were filed, I invited the applicants to respond if they wished. They did not do so.
Part VAA of the FCA Act deals with suppression and non-publication orders. Section 37AF provides that the Court may make an order prohibiting or restricting the publication or other disclosure, amongst other things, of information relating to a proceeding before the Court that comprises evidence or information about evidence: FCA Act, s 37AF. “May” in the sense in which it is used in s 37AF means “must”: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [32]–[33].
Such an order may only be made, however, on one or more of the grounds set out in s 37AG. The Minister relies on the first of those grounds contained in para 37AG(1)(a): that “the order is necessary to prevent prejudice to the proper administration of justice”. Alternatively, the Minister invokes the ground in para 37AG(1)(b) that “the order is necessary to prevent prejudice to the interests of the Commonwealth … in relation to national or international security”.
In accordance with the requirement imposed by s 37AE of the Act, I have taken into account the fact that the primary objective of the administration of justice is to safeguard the public interest in open justice. Nevertheless, I am satisfied that in this instance the public interest in open justice is outweighed by the need to prevent prejudice to the administration of justice, if not also prejudice to the Commonwealth in relation to Australia’s national security.
An open affidavit from Mr Minns was filed in the court below. In that affidavit, Mr Minns stated that he had caused redactions to be made to the documents because, without them, the methods used by the Department in the course of its regular examination of identity documents would be revealed; the Department’s ongoing ability to detect fraudulent and counterfeit identity documents would likely be frustrated, compromised or impeded; and this would be to the prejudice of, amongst others, the Department, the Australian Government, and the wider Australian community. More extensive reasons were provided in the closed affidavit. I accept that evidence.
Since the claim of public interest immunity has not been argued, let alone determined, it would frustrate that claim not to make the order the Minister now seeks. For that reason alone, a suppression or non-publication order is necessary to prevent prejudice to the administration of justice.
A suppression or non-publication order made under Pt VAA operates for the period decided by the Court and specified in the order. But the period during which an order operates may be specified by reference either to a fixed or ascertainable period or to the occurrence of a specified future event: FCA Act, s 37AJ. In the present case the order should operate until further order.
Having inspected all the documents carefully, I am unable to discern any error in the primary judge’s treatment of them or in his Honour’s conclusion that the redacted material could not have had any possible relevance to any of the issues before the Tribunal. Indeed, I respectfully agree with him.
Conclusion
Balancing the considerations favouring the grant of an extension against those which do not, and having regard to the obligation imposed upon the Court by s 37M of the Act, I am not satisfied that the time to appeal should be extended.
It follows that the application must be dismissed.
Costs should follow the event.
There will be orders accordingly.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 9 September 2019
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