CCB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 332
•4 April 2022
FEDERAL COURT OF AUSTRALIA
CCB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 332
Appeal from: CCB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3679 File number(s): NSD 51 of 2020 Judgment of: THAWLEY J Date of judgment: 4 April 2022 Catchwords: MIGRATION – Application for leave to appeal an interlocutory judgment on show cause application by the Federal Circuit Court – whether primary judge erred in failing to find jurisdictional error on the part of the Tribunal – whether Tribunal failed to take into account relevant considerations – whether Tribunal took into account irrelevant considerations – whether injustice arose from failing to put section 483 Migration Act 1958 (Cth) certificate to applicant – leave to appeal refused – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) rr 44.12(a)
Federal Court of Australia Act 1976 (Cth) s 24(1)(a)
Federal Court Rules 2011 (Cth) r 1.61(5)
Migration Act 1958 (Cth) s 438
Cases cited: Décor Corporation Proprietary Limited v Dart IndustriesInc (1991) 33 FCR 397
Sharp v Deputy Commissioner of Taxation (1988) 19 ATR 908
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 4 April 2022 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr T Hillyard of Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 51 of 2020 BETWEEN: CCB19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
THAWLEY J
DATE OF ORDER:
4 APRIL 2022
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The application is dismissed.
3.The applicant pay the respondent’s costs in the fixed amount of $4000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)THAWLEY J:
The applicant applies for leave to appeal from orders made on 16 December 2019 by what was then the Federal Circuit Court of Australia.
The orders made by the primary judge dismissed the applicant's application for judicial review of a decision made by the Administrative Appeals Tribunal on 24 April 2019: CCB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3679. The applicant considered that he also required an extension of time for leave to appeal. The Minister correctly submitted, however, that this was not in fact the case by reason of the operation of rule 1.61(1) and (5) of the Federal Court Rules 2011 (Cth) which provides:
1.61Calculation of time
(1)A period of time for doing an act or thing fixed by these Rules or by an order of the Court is to be calculated in accordance with this rule.
…
(5)If the time fixed includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted.
The primary judge's decision was made under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule provided:
(1)At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application
…
(2)To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
Section 24(1A) of the Federal Court of Australia Act1976 (Cth) provides that an appeal to this Court shall not be brought from an “interlocutory judgment” unless leave is granted by the Court or a judge. The primary judge's judgment was an “interlocutory judgment” for the purposes of section 24(1A).
The question of whether leave to appeal should be granted turns principally on (1) the decision giving rise to the orders being attended with sufficient doubt to warrant it being considered by a Full Court, and (2) substantial injustice resulting if leave were refused: Décor Corporation Proprietary Limited v Dart IndustriesInc (1991) 33 FCR 397 at 398.
As was stated in Décor at 398-9, citing Burchett J in Sharp v Deputy Commissioner of Taxation (1988) 19 ATR 908 at 910, these two issues are interrelated:
[T]he sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.”
The relevant facts were set out by the primary judge at [3] to [9] of his Honour's judgment (citations omitted):
Introduction and background
…
[3]The applicant, a citizen of India, first arrived in Australia on 23 March 2009 on a student visa. His most recent arrival in Australia was in 2012. The applicant then remained in Australia on a bridging visa from 4 February 2013. On 12 March 2015, the applicant made an application for a protection visa. On 11 March 2016, the delegate refused to grant the applicant a protection visa.
[4]On 31 March 2016, the applicant lodged an application with the Tribunal for review of the delegate’s decision. On 23 April 2019, the applicant attended a hearing before the Tribunal, with the assistance of a Punjabi interpreter. On 24 April 2019, the Tribunal affirmed the decision under review. Applicant’s claims
[5]The applicant’s claims for protection were set out in an undated statement attached to his protection visa application, and centred around the breakdown of his relationship with his ex-wife, “K”. He claimed that he and K had several arguments and she frequently demanded money from him. She divorced him after commencing a new relationship. K told her family that the applicant was abusive and was forcing her to get a divorce, which made her family furious. K’s family harassed the applicant and his family, and threatened to kill him.
[6]At the interview before the delegate, the applicant indicated that the divorce had been finalised at the end of 2009 in Brisbane. He confirmed that the threats by K’s family to his family had been confined to K’s family asking about him, but that this had not happened for 6-12 months before the delegate interview. The applicant told the delegate that he could not relocate within India as his family only had one house. The applicant’s family had been to the authorities in India, but K’s family had “more brothers” so the authorities took no action. Before the Tribunal, the applicant claimed that one of K’s brothers was a member of a gang.
Tribunal decision
[7]The Tribunal recorded that the Minister’s Department had issued a non-disclosure certificate (s.438 certificate) pursuant to s.438 of the Migration Act 1958 (Cth) (Migration Act), which it found to be invalid. Further, the Tribunal considered that the document covered by the s.438 certificate (an internal Departmental document relating to his identity) was irrelevant to the proceeding, as the applicant’s identity was not in issue.
[8]The Tribunal rejected the applicant’s claims to fear harm on the basis that they lacked credibility. The Tribunal accepted that the applicant was married to K. However, it did not accept that the applicant was in a genuine relationship with K, or that her family threatened the applicant or his family members. In reaching this finding, the Tribunal had regard to the following matters:
a)the applicant provided evidence that after divorcing K, he subsequently married two other women. However, the applicant referred to his third wife only when recalling the visa applications that he had made in Australia. The Tribunal found that this reinforced concerns it had that the applicant entered into these relationships to secure a migration outcome;
b)the applicant’s vague and unsubstantiated account of his marriage with K;
c)the applicant’s return to India in 2012, which the Tribunal considered was an indication that the threats to his safety from K’s family were not serious or credible;
d)the applicant’s claim that he and his family were receiving threats and living in fear of K’s family and her brother’s gang associates, was inconsistent with his evidence that his family continued to live in the same village and the gang had not carried out their threats; and e) the significant delay in the applicant lodging a protection visa application.
9.As a consequence, the Tribunal rejected the entirety of the applicant’s claims to fear harm. Accordingly, the Tribunal found the applicant satisfied neither the Refugees Convention criterion pursuant to s.36(2)(a) of the Migration Act, nor the complementary protection criteria pursuant to s.36(2)(aa) of the Migration Act.
The applicant's application for judicial review contained two grounds:
1The Tribunal fell into jurisdictional error by failing to take into account relevant information in the applicant’s protections claims.
2The Tribunal fell into jurisdictional error by taking into account irrelevant considerations.
In relation to ground 1, the primary judge stated:.
[13]The assertions that the Tribunal failed to take into relevant information and took into account irrelevant considerations are meaningless in the absence of particulars. In that regard, I agree with the Minister’s submissions.
[14]In the absence of particulars, it is unclear which claims the applicant contends were not considered by the Tribunal. Nor is any failure to take into account information or evidence apparent on the material before the Court. Ground 1 cannot succeed.
In relation to ground 2, the primary judge stated:
[15]Again, in the absence of further particulars, it is difficult to determine which of the Tribunal’s findings the applicant seeks to impugn in Ground 2. In any case, the decision record does not reveal that Tribunal identified any wrong issue or that it otherwise had regard to an irrelevant consideration. It rejected the applicant’s claims for protection on the basis of adverse credibility findings and its assessment of the evidence before it was logically probative of the applicant’s credibility, and those credibility findings were open to it for the reasons it gave. No error is established by Ground 2.
At [18], the primary judge concluded that the applicant was unable to establish an arguable case of jurisdictional error, with the result that the primary judge ordered that the application be dismissed under rule 44.12(1)(a) of the Rules.
The applicant's grounds on this application for leave to appeal are as follows:
1.Court made decision on the basis of credibility not on the basis of actual fear the appellant is facing in India.
2. Court failed to identify the seriousness of harm to the appellant and took into account irrelevant considerations.
3. The second respondent failed to give weigh to the actual fear rather it regarded the irrelevant consideration.
4. 438 Certificate was discredited which led to a practical injustice.
The role of the Federal Circuit Court of Australia was to determine whether, on the grounds put forward by the applicant, the applicant had established jurisdictional error on the part of the tribunal.
The conclusions of the Federal Circuit Court in relation to the two grounds of judicial review advanced were correct.
As to ground 1 of the application to this Court, the primary judge did not make his decision on the basis of credibility.
As to ground 2 of the application to this court, there was no evidence that the seriousness of harm was put to the primary judge as a relevant matter to address when dealing with the grounds put to the primary judge. As to the contention that the primary judge took into account irrelevant considerations, the applicant did not identify what these irrelevant considerations were. The applicant is self-represented. I reviewed the primary judge's reasons and I was unable to identify any consideration considered by the primary judge which the primary judge was not permitted to take into account.
As to ground 3 of the application, which in some respects mirrors ground 2 before the primary judge, it has not been established that the Tribunal did not take into account the applicant's evidence concerning his fears, or any other matter relevant to fear. The applicant did not identify any irrelevant considerations said to have been taken into account by the Tribunal. I was also not able to identify any such irrelevant considerations.
As to ground 4 of the application to this Court, it is sufficient to refer to the following correct conclusion of the primary judge:
[17] The s.438 certificate was issued over the Departmental file in this matter and while not raised as a ground of review, the Minister has properly raised the question whether this gives rise to jurisdictional error. The certificate purports to cover folio 62, an internal identification checklist. The Tribunal identified that the certificate was invalid and irrelevant to the issues arising on review. In circumstances where the applicant’s identity was not in dispute, no practical injustice arose from the Tribunal not putting the certificate or its contents to the applicant for comment.
The applicant indicated in his oral submissions that he could not point to any specific error in the primary judge's reasons, but that he wished to stay in Australia. For the applicant’s benefit, I should explain that this Court's role on appeal is confined to the identification and correction of error. The Court does not have the power to grant a visa on the merits.
Leave to appeal must be refused and the application dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley. Associate:
Dated: 4 April 2022
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