Ayi18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1893
•13 November 2020
FEDERAL COURT OF AUSTRALIA
AYI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1893
Appeal from: AYI18 v Minister for Immigration & Anor [2018] FCCA 3464 File number: WAD 607 of 2018 Judgment of: LOGAN J Date of judgment: 13 November 2020 Catchwords: MIGRATION – appeal from Federal Circuit Court dismissing the appellants’ judicial review of Immigration Assessment Authority – where Authority upheld decision of decision-maker to refuse appellants’ Safe Haven Enterprise and Temporary Protection visas – whether Authority erred in law by failing to choose on a reasonable basis what conflicting information to accept – where Authority preferred certain material in reasons – appeal dismissed
PRACTICE AND PROCEDURE – issue raised on appeal not raised below – whether issue had sufficient prospects of success – where Full Court found no merit in issue raised in separate appeal – leave to raise issue refused
Legislation: Migration Act 1958 (Cth) Pt 7AA Cases cited: AYI18 v Minister for Immigration & Anor [2018] FCCA 3464
BJI17 v Minister for Home Affairs (2020) 276 FCR 258
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: 13 November 2020 Counsel for the Appellants: The First Appellant appeared in person on behalf of all the Appellants with the assistance of an interpreter Counsel for the First Respondent: Mr P MacLiver Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
WAD 607 of 2018 BETWEEN: AYI18
First Appellant
AYJ18
Second Appellant
AYK18 BY HIS LITIGATION REPRESENTATIVE AYI18 (and another named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
13 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The appellants be refused leave to raise the issue specified in the ground of appeal.
2.The appeal be dismissed.
3.The first and second appellants pay the first respondent’s costs of and incidental to the appeal to be fixed by a Registrar if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The adult male appellant, his wife and their children are each citizens of Afghanistan. The younger child was born in Australia. The other appellants were each born in Iran, or in the case of the adult male appellant, Afghanistan. Each appellant born outside Australia came here with the assistance of a people smuggler. In entering Australia on 7 May 2013, they did so without possessing the requisite visa. The adult appellants have each applied for a Safe Haven Enterprise visa under the Migration Act 1958 (Cth) (the Act). The minors have sought, under that Act, a Temporary Protection visa.
On 4 July 2017, a delegate of the Minister (Minister’s delegate), then responsible for the administration of the Act, refused the appellants’ visa applications. As Pt 7AA of the Act required, following that refusal, the applications were referred for assessment by the Immigration Assessment Authority (Authority). On 30 January 2018, the Authority decided to affirm the decision of the Minister’s delegate. On 27 November 2018, the Federal Circuit Court of Australia (Federal Circuit Court) dismissed with costs a judicial review challenge made by the appellants to the Authority’s decision. The appellants then appealed to this Court against that dismissal order.
The adult male appellant is the litigation representative for the purposes of the appeal for the two minor appellants. It was he who made submissions on his own behalf, as well as their behalf and on behalf of his wife today. His wife, the adult female appellant, is present in court and has been able to hear the translation of the proceedings.
It is convenient now to refer to the four appellants in a collective sense, given the author of their submissions today, as the appellant.
The ground set out in the notice of appeal is this:
The learned Federal Circuit Court Judge erred in law by failing to conclude that the Immigration Assessment Authority erred in law by failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis, as to what of conflicting information to accept and which of that information was reliable.
The Minister submitted that this particular ground of appeal raised an issue which had not been raised before the Federal Circuit Court in the judicial review application. Having regard to the application for review filed in that Court and the reasons for judgment of the learned primary judge, there is merit in that particular submission.
In order to raise on appeal an issue not raised below, leave (permission) of this Court is necessary. The Minister very fairly conceded that the issue was a pure point of law. Equally fairly and on the authorities correctly, the Minister conceded that it was in any event necessary to examine the ground of appeal, to see whether it disclosed sufficient prospects of success to warrant a grant of leave.
It is important to remember that the jurisdiction conferred on this Court in a case like the present is appellate, not original, jurisdiction. Of course, the interests of justice may dictate that in a particular case, and in the absence of prejudice, an issue not raised below, which has sufficient prospects of success, should be allowed to be raised on appeal. Equally, however, there should be no encouragement, either to litigants or the profession, that issues can be saved up, or that it is not usually necessary to bring before a court of original jurisdiction each and every jurisdictional error challenge.
Understanding the prospects of success requires that I make brief reference to the nature of the visa claim made. In summary, the appellants each Shia Hazaras. They claim to fear harm in Afghanistan, on the basis of their religion and ethnicity, from the Pashtun majority. They also claim to fear harm from the Taliban and other armed groups in Afghanistan. A more detailed description, based on the reasons of the Authority, is to be found in the reasons for judgment of the learned primary judge: see AYI18 v Minister for Immigration & Anor [2018] FCCA 3464.
The hearing of the present appeal was deferred pending the hearing and determination by the Full Court of BJI17 v Minister for Home Affairs (2020) 276 FCR 258 (BJI17). That was because the issue which was the subject of the appeal in that case was in substance, and even, in effect, in form, the same as that specified in the ground of appeal in this case. The present is one of a number of cases which awaited the Full Court’s judgment in BJI17. On 3 April 2020, the Full Court dismissed the appeal in BJI17. In so doing, the Full Court found no merit in the very issue sought to be raised by the appellants in the present case.
In BJI17, Greenwood J, who delivered the principal judgment, with which McKerracher and Burley JJ agreed, stated at [98] and [99]:
98The proposition that the repository of the statutory obligation to conduct a review of the delegate’s decision has exercised the statutory function by reaching a decision which is “so unreasonable that no reasonable authority could ever have come to it” or a decision that “lacks an evident and intelligible justification” and is thus unreasonable, is simply not open on the exposed reasoning of the IAA as described in these reasons. Nor can it be said that the decision, reached on the footing as described, reveals a decision rooted in “unreliable information”.
99The proposition advanced by the appellant, ostensibly placed within the rubric of Li, SGLB and Singh (and calling in aid CRI026) is, in substance, an emphatic disagreement with the findings of the IAA on the merits of the decision with the result that the appellant, in truth, cavils with the outcome of the deliberative process of evaluation of the many cited reports which address the relevant security circumstances “across Afghanistan” and “within the Balkh Province, Malistan and Mazar-e-Sharif”, in the context of the claims of the appellant.
Of course, the prospects of success in relation to the point in this case must be assessed by reference to the Authority’s reasons in this case. However, when I examine the reasons given by the Authority, I find that the Authority has engaged comprehensively with the various bases upon which the appellants claimed to fear persecution. It is just that, for reasons which are neither illogical nor irrational, the Authority has chosen to prefer particular material rather than material which the appellants wished the Authority to accept and act upon.
It was so very clear on hearing the appellant’s submissions this afternoon that he and his wife emphatically and genuinely disagree with the preferences of the Authority as to the circumstances in Afghanistan. Emphatic disagreement is not however, as BJI17 discloses, a foundation for the jurisdictional error ground of unreasonableness. The appellant also made reference in his submissions to more recent events in Afghanistan. That he chose to do so is so very understandable in his circumstances. However, it is not relevant, given the Court’s role, to consider such matters in relation to deciding this particular appeal.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 26 February 2021
SCHEDULE OF PARTIES
WAD 607 of 2018 Appellants
Fourth Appellant:
AYL18 BY HIS LITIGATION REPRESENTATIVE AYI18
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