CKJ17 v Minister for Home Affairs
[2018] FCA 1284
•7 August 2018
FEDERAL COURT OF AUSTRALIA
CKJ17 v Minister for Home Affairs [2018] FCA 1284
Appeal from: CKJ17 v Minister for Immigration and Anor [2018] FCCA 568 File number: QUD 109 of 2018 Judge: LOGAN J Date of judgment: 7 August 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – grounds not raised before primary judge – no merit in grounds. Held – dismissed. Legislation: Migration Act1958 (Cth) ss 5J, 424A, 424AA Cases cited: CKJ17 v Minister for Immigration [2018] FCCA 568 Date of hearing: 7 August 2018 Date of last submissions: 7 August 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Ms L Helsdon of Sparke Helmore Lawyers ORDERS
QUD 109 of 2018 BETWEEN: CKJ17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
7 AUGUST 2018
THE COURT ORDERS THAT:
1.Leave to raise Ground 2 in the notice of appeal is refused.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs fixed in the sum of $4,400.
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 appellant is a citizen of the People’s Republic of China. Prior to her initial arrival in Australia in December 2006, she resided in China’s Hong Kong Special Administrative Region.
The appellant’s visa history since her arrival in Australia is a complicated one. On 9 December 2006, she was granted, on arrival, a Short-term Visitor visa. In April 2007, the basis for her lawful presence in Australia became a Student visa. A further such visa was granted to her in October 2010.
That visa came to be cancelled by a delegate of the Minister administering the Migration Act1958 (Cth) (the Act). That Minister is now termed the Minister for Home Affairs (Minister). The Minister is the only active party respondent to the present appeal. The other respondent, the Administrative Appeals Tribunal, has, appropriately, filed a submitting appearance.
The cancellation of the appellant’s further Student visa was reviewed by the then Migration Review Tribunal (Tribunal).
In February 2011, the Tribunal affirmed the decision by the Minister’s delegate to cancel that Student visa. The following month, the appellant applied for a Combined Partner visa. That application was refused by a delegate of the Minister. The appellant sought the review of that decision by the Tribunal. It was not until February 2015 that the Tribunal handed down its decision. That decision was to affirm the decision of the Minister’s delegate to refuse the appellant’s application for a Combined Partner visa.
Thereafter, on 8 April 2015, the appellant applied, under the Act, for that class of visa known as a Protection (Class XA) visa. It is the Protection visa application which underpins the present proceedings. That application was refused by a delegate of the Minister. On 11 December 2015, the appellant applied to the Tribunal for a review of the delegate’s refusal decision. It was not until 2 May 2017 that the Tribunal handed down its decision in respect of that review application. The Tribunal decided to affirm the delegate’s decision to refuse the applicant’s Protection visa application.
On 5 June 2017, the appellant applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. On 9 February 2018, for reasons given that day, that court dismissed, with costs, the appellant’s judicial review application: see CKJ17 v Minister for Immigration [2018] FCCA 568.
The appellant now appeals to this Court against the order of dismissal. The grounds of appeal are these:
1.Federal Circuit Court failed to consider the second respondent acted in breach of the rules of procedural fairness.
2.The second respondent ignored relevant considerations in making the decision. The appellant claims she will be harmed by her ex-husband if she returns to her original country.
3.The second respondent made no reasonable findings as to whether or not this occurred, no findings about whether or not, if it did happen, it gave rise real chance of harm.
The appellant appeared on her own behalf with the assistance of an interpreter. It is just a fact, and no adverse criticism of the appellant, that she was not able, in oral submissions, to give particularity to the first of her grounds of appeal. The Minister put in issue as to whether that first appeal ground and, for that matter, the second, raised issues were not raised in the Federal Circuit Court.
Of course it is the case that the jurisdiction presently being exercised is appellate, not original. That being so, only exceptionally will an appellant be permitted to raise an issue not raised in the Court alone. But the interests of justice can dictate, where there is an evident jurisdictional error, that, exceptionally, a related issue be allowed to be raised as a ground of appeal in this Court for the first time.
In fairness to the appellant, the first of her grounds is capable of being regarded as covering two issues which she did raise before the Federal Circuit Court. One of those issues was an allegation of bias on the part of the Tribunal member. Quite correctly, the learned primary judge regarded the raising of such an issue as a serious matter requiring particular proof. The evidentiary foundation for such an allegation was, in the material before the Federal Circuit Court, only to be found in the Tribunal’s reasons for decision. It was for the appellant to provide an evidentiary foundation for her allegation. Notably, she did not tender, in support of her allegation, a transcript of the proceedings before the Tribunal at the hearing conducted by the Tribunal.
The Tribunal’s reasons for decision disclose no basis whatsoever for a finding that the Tribunal member concerned either was actually biased or even appeared to be biased. It is evident from the reasons that the Tribunal member did not accept, uncritically, all of the evidence which the appellant gave orally to the Tribunal. The reasons also disclose, related to that, that the Tribunal member deliberately put potentially adverse information or propositions to the appellant for comment during the course of the hearing. It may well be that the testing in this manner of the appellant’s evidence raised concerns on the part of the appellant. But those concerns do not, in themselves, constitute, and could not constitute, a basis for concluding that the Tribunal member was either actually biased or even appeared to be biased. The Tribunal member was not obliged to accept, uncritically, the appellant’s evidence. Further, upon the assumption that potentially adverse information fell within the terms of either s 424AA or s 424A of the Act, the Tribunal was under an obligation to put that information to the appellant.
The learned primary judge concluded that there was no basis shown for a finding that the Tribunal member was actually biased or appeared to be biased. I agree with that conclusion. Also, as to this ground of appeal, insofar as there was any obligation arising from the Act to put adverse information to the appellant, the Tribunal member observed that obligation in the course of the hearing, as the Tribunal member’s reasons disclose. The learned primary judge correctly appreciated this.
If only for completeness, I should also mention that, insofar as s 425 of the Act required the Tribunal to extend to the appellant an offer of a hearing, the Tribunal did so. The appellant took up that offer. She was not either at that hearing, or at any stage of the review conducted by the Tribunal, subject to any formal onus of proof. But it was, nonetheless, in her interest to place before the Tribunal such evidence and other supporting oral evidence and other material as she was able to support her claim that she fell within the criteria for the grant of a Protection visa.
However one approaches Ground 1, there is just no merit in it.
The second appeal ground does, in my view, raise an issue which was not raised before the Federal Circuit Court. It may readily be accepted that a failure to consider a particular, or integer as it is sometimes termed, of a Protection visa claim will amount to a failure to consider a relevant consideration. But the particular relevant consideration identified by the appellant in Ground 2, and confirmed in her oral submissions, was, having regard to the Tribunal’s reasons, manifestly considered by the Tribunal. It is just that, for reasons logically expressed by the Tribunal in its reasons for decision, see, particularly, the paragraphs under the heading “Assessment of Claims”, the Tribunal did not accept that the appellant would be harmed by her ex-husband if she returned to Hong Kong. Yet further the Tribunal also concluded, unremarkably, that the harm concerned did not, in any event, fall within the criteria for the grant of a Protection visa as detailed in s 5J of the Act.
I have made reference to the merits of Ground 2 because it is always relevant to consider these in deciding whether or not leave to raise an issue not raised below should be granted in respect of an appeal. The asserted issue on Ground 2 has no prospect of success. That being so, the correct order, in my view, is to refuse leave to raise Ground 2.
As the appellant developed her oral submissions in relation to Ground 2, it became apparent that her real dispute was with the conclusions reached by the Tribunal in respect of the merits of her claim. She strongly disagreed with the Tribunal’s assessment of the merits. Sometimes people describe a conclusion with which they strongly disagree as an unreasonable conclusion, but that is not unreasonableness insofar as that jurisdictional error ground is concerned.
The appellant and her ex-husband separated as long ago as 1998. Thereafter, they did have contact, as the Tribunal found, particularly in the context of access to their son. The appellant made allegations of domestic violence and worse in relation to contact with her ex-husband. In relation to the prospect of a fear of harm, though, the Tribunal member made reasoned findings in relation to the appellant’s credibility. In particular, those findings were based on inconsistencies which the Tribunal member highlighted in the reasons for decision. Conclusions by a Tribunal in relation to credibility are not immune from challenge in judicial review, but these particular conclusions are both logically and rationally expressed and also, in relation to Ground 3, reasonably open for the Tribunal to have made. The latter, plainly enough, was also appreciated by the learned primary judge. There is no merit in Ground 3.
It necessarily follows that the appeal must be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 24 August 2018