CMO17 v Minister for Immigration and Border Protection
[2018] FCAFC 227
•22 November 2018
FEDERAL COURT OF AUSTRALIA
CMO17 v Minister for Immigration and Border Protection [2018] FCAFC 227
Appeal from: CMO17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 1888 File number: QUD 519 of 2018 Judges: LOGAN, DAVIES AND STEWARD JJ Date of judgment: 22 November 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – absence of satisfaction by Immigration Assessment Authority that appellant a person to whom protection obligations were owed or in need of complementary protection – Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa) – whether absence of satisfaction unreasonable or illogical – whether evidence as to current events in country of former habitual residence admissible on judicial review before Federal Circuit Court. Held – no error in Federal Circuit Court’s conclusion that Authority’s decision neither unreasonable nor illogical – no basis for admissibility of further evidence established. Legislation: Migration Act 1958 (Cth) ss 36, 36(2)(a), 36(2)(aa), 65, 46A(2), 473DD
Federal Court Rules2011 (Cth) r 36.01(2)(c)
Cases cited: Bankstown Municipal Council v Fripp (1919) 26 CLR 385
Buck v Bavone (1976) 135 CLR 110
CMO17 v Minister for Immigration & Anor [2018] FCCA 1888
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Minister for Immigration v Eshetu (1999) 197 CLR 611
Nobarani v Mariconte (2018) 92 ALJR 806
Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1
Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87
Date of hearing: 22 November 2018 Date of last submissions: 22 November 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Ms S Forder Solicitor for the Respondents: Sparke Helmore ORDERS
QUD 519 of 2018 BETWEEN: CMO17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGES:
LOGAN, DAVIES AND STEWARD JJ
DATE OF ORDER:
22 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, of and incidental to the appeal, to be taxed 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 appellant is a citizen of Afghanistan. He came to Australia on 22 October 2012 by boat. The circumstances of his arrival were such that he entered Australia as what the Migration Act 1958 (Cth) (the Act) terms an “unauthorised maritime arrival.”
In May 2015, the ministerial predecessor in the ministerial office now known as the Minister for Home Affairs (Minister) notified the appellant of a favourable exercise of discretion under s 46A(2) of the Act. That favourable exercise of discretion permitted the appellant to lodge a valid application under the Act for a temporary protection visa.
The appellant lodged such an application with the Minister’s department on 9 June 2015. On 19 September 2016, a delegate of the Minister decided to refuse the appellant’s application for a temporary protection visa. A sequel to that was that the appellant’s application was then referred under the Act for review by the Immigration Assessment Authority (Authority). On 12 May 2017, for reasons given in writing that day, the Authority decided to affirm the Minister’s delegate’s decision not to grant to the appellant a temporary protection visa.
The appellant then applied to the Federal Circuit Court for the judicial review of the Authority’s decision. Unlike today, the appellant had the benefit of representation by counsel and solicitor before the Federal Circuit Court. On 12 July 2018, the Federal Circuit Court dismissed, with costs, the appellant’s judicial review application; see CMO17 v Minister for Immigration & Anor [2018] FCCA 1888. The appellant has now appealed to this Court against that order of dismissal.
The grounds of appeal, as stated in the notice of appeal, are these:
1.The circuit court’s decision was unreadable
2.the circuit court’s decision an improper exercise of power
3.circuit court failed to properly interpret and/or apply s 36 and/or ss5H to 5 LA of the Migration Act 1958
4.The circuit court failed to properly interpret and/or apply Part 7AA of the Migration Act 1958
[sic]
The appellant appeared on his own behalf. The Minister, who was the only active party respondent, appeared by counsel and solicitor. As it had done the Federal Circuit Court, the Authority, quite properly, filed a submitting appearance.
The Federal Court Rules 2011 (Cth) provide in respect of a notice of appeal that it must state briefly, but specifically, the grounds relied on in support of the appeal (see r 36.01(2)(c)). An absence of legal representation does not mean that any different rules of court apply to a litigant in person. That is not to say that, at times, patience and perhaps leniency should not attend the Court’s dealing with a litigant in person in relation to compliance with the rules of court: see, notably, in relation to this, Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1, recently cited with approval by the High Court in Nobarani v Mariconte (2018) 92 ALJR 806.
One basis upon which we might have disposed of this appeal was that, as they were stated in the notice of appeal, the grounds of appeal were so imprecise as to be without meaningful content in terms of detailing the error made by the Court below. But that particular approach, especially in a case involving an application for this class of visa, may have left the appellant with a particular feeling of injustice in relation to his grievance. So we made a point of going through each of the grounds of appeal with the appellant, so that we, and the Minister, might understand what was the grievance or grievances of the appellant which lay behind those generally stated grounds.
Of course, care must be taken in relation to that procedure, lest it visit upon the Minister procedural unfairness. But in this case, that did not occur. There was no need, for example, to consider whether or not the Minister, as a matter of procedural fairness, might be entitled to an adjournment, however brief, in order to deal with a challenge not apparent on the face of the notice of appeal. Neither did it become necessary for us to consider whether or not leave might be necessary in order to raise, on appeal, a point not taken in the grounds of review before the Federal Circuit Court.
What did emerge was this. First and foremost, the appellant emphatically disagrees with the assessment of the security situation in Afghanistan made by the Authority, and the Federal Circuit Court’s conclusion that that assessment was one reasonably open.
Secondly, and related to that disagreement about the assessment made of the security situation, the appellant is enduringly aggrieved by the rejection by the Federal Circuit Court of an endeavour to tender further information concerning the security situation in Afghanistan on the hearing of his judicial review application. That information concerned events in Afghanistan which had occurred since the Authority gave its decision.
At the heart of the appellant’s claim for a temporary protection visa was an asserted fear of harm if returned to Afghanistan, because he was a Hazara ethnic and a Muslim of the Shia faith. Hazaras of that branch of the Muslim faith were, he claimed, targeted, beaten, tortured, and even killed, because of their ethnicity and religion. The Authority accepted that the appellant was an ethnic Hazara and a Shia Muslim. It assessed his claim to the end of deciding whether it was satisfied that he was a person to whom protection obligations were owed, by reference particularly to his home region, and also to Kabul. The appellant’s home region was the Haidar area of Jaghori District, in the Ghazni Province of Afghanistan. It did so, in this case, not just by reference to the material before the Minister’s Delegate, but also by reference to new information from the appellant, permitted to be introduced under s 473DD of the Act.
The end result, for reasons explained at some length, and in particularly focused detail, by the Authority, was that the Authority was neither satisfied, under s 36(2)(a) of the Act, that the appellant was a person to whom protection obligations were owed; nor that he was someone to whom, on a complementary protection basis, a visa should nonetheless be granted, having regard to s 36(2)(aa) of the Act.
In the Federal Circuit Court, the appellant’s challenge to the Authority’s decision, the result of that absence of satisfaction, on the basis of unreasonableness, illogicality or irrationality failed.
The description “unreasonable” in respect of an administrative decision can sometimes be used as a way of expressing emphatic disagreement with such a decision but here, for reasons thoroughly canvassed by the learned Federal Circuit Court judge in his reasons for judgment, the absence of satisfaction on either limb and resultant decision by the Authority that no visa ought to be granted was just the result of a preference, logically explained, for particular material concerning the situation both in the appellant’s home province and Kabul over other information.
The basis of tender of the further evidence to the Federal Circuit Court was reliance upon a judgment of Hill J given in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 (Surinakova). In rejecting the tender of that evidence as neither relevant nor admissible, the Federal Circuit Court stated at [51]:
By the use of the evidence, the applicant seeks to challenge the authority’s finding of fact that there was no real chance of harm to the applicant in his home region or in Kabul by demonstrating that what little risk the authority assessed there was had come to pass. The evidence does not go towards the decision-making process in the sense explained in the authorities referred to above.
That last sentence is a reference to authorities detailed by the Federal Circuit Court between [44] and [49]. His Honour added:
To the extent that the applicant suggests the approach in Surinakova demands a different outcome, I would respectfully decline to follow the obiter dicta relied on by the applicant.
Here, both in relation to s 36(2)(a) and 36(2)(aa), the Authority, in deciding whether it was satisfied, adverted on the material before it not just to the current situation but that in respect of the foreseeable future. That being so, and for the reason given by the learned Federal Circuit Court judge, there was not, in my view, any scope for the admissibility of the evidence sought to be tendered. It was not for the Federal Circuit Court to be satisfied that the s 36 criteria existed; that was for the Authority. The Federal Circuit Court’s task was to determine whether there was jurisdictional error by the Authority in making its decision, not itself to make that decision on the merits.
The jurisdictional fact or facts, which were entailed in the Authority making its decision were states of administrative satisfaction. Such satisfaction was, “A condition precedent to the discharge of the obligation to grant or refuse” under s 65 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992. To describe such satisfaction as a jurisdictional fact does have an awkward quality, as Gummow J observed in Minister for Immigration v Eshetu (1999) 197 CLR 611. That is because, as was pointed out by Issacs and Rich JJ in Bankstown Municipal Council v Fripp (1919) 26 CLR 385, satisfaction-based conditions are used by Parliament as a means of preventing litigation on jurisdictional facts. In truth, where the jurisdictional fact is a state of administrative satisfaction, what is prevented is litigation about the existence of the fact but not litigation about the administrative conclusion as to satisfaction that the fact exists. The basis for that litigation is as stated by Gibbs J in Buck v Bavone (1976) 135 CLR 110:
… a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.
Assuming, then, (and it is unnecessary to decide) that what was stated in Surinakova is correct, this was not, on the facts, a case for the admission of further evidence, given the express adverting to not just present, but also to foreseeable future subjects by the Authority on the material than before it. What necessarily follows, in my view, is that, even if one deals with this appeal on the basis of the grievances detailed by the appellant in his exchange with us this morning, it must fail. I would, therefore, dismiss the appeal.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 17 December 2018
REASONS FOR JUDGMENT
(Revised From Transcript)DAVIES J:
I agree with the reasons and conclusion of Logan J, and, too, would dismiss the appeal.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 17 December 2018
REASONS FOR JUDGMENT
(Revised From Transcript)STEWARD J:
I concur with the judgment of Logan J.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Steward. Associate:
Dated: 17 December 2018
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