DLC18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 900
•4 August 2023
FEDERAL COURT OF AUSTRALIA
DLC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 900
Appeal from: DLC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 173 File number(s): NSD 276 of 2023 Judgment of: JACKMAN J Date of judgment: 4 August 2023 Catchwords: MIGRATION – appeal from decision of the Federal Circuit and Family Court of Australia dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal affirming the decision of a delegate of the Minister to refuse to grant the appellants protection visas – whether the primary judge erred in finding that there was no jurisdictional error in the decision of the Tribunal – form of notice of appeal – whether the primary judge erred in finding that the Tribunal did not fail to afford the appellants procedural fairness – whether an adjournment should be granted – appeal dismissed Legislation: Migration Act 1958 (Cth) Pt 7, ss 425, 425A, 426A
Federal Court Rules 2011 (Cth) r 36.01
Cases cited: Coulton v Holcombe (1986) 162 CLR 1
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
DLC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 173
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68
Water Board v Moustakas (1988) 180 CLR 491
Zegarac v Dellios [2007] FCAFC 58
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 2 August 2023 Counsel for the First Appellant: The First Appellant was self-represented Counsel for the Second Appellant: The Second Appellant did not appear Solicitor for the First Respondent: Ms A Wilford of Sparke Helmore Lawyers ORDERS
NSD 276 of 2023 BETWEEN: DLC18
First Appellant
DTB18
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JACKMAN J
DATE OF ORDER:
4 AUGUST 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKMAN J
This is an appeal from the judgment and orders of the Federal Circuit and Family Court of Australia made on 10 March 2023: DLC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 173. The primary judge dismissed the application for judicial review of a decision by the second respondent (the Tribunal). The Tribunal had affirmed decisions made by a delegate of the first respondent (the Minister) refusing to grant the appellants Protection (Class XA) visas (the Visas). The second appellant is the son of the first appellant and was born on 4 January 1998. The appellants are citizens of the People’s Republic of China (PRC), who arrived in Australia on 5 June 2014 as holders of a Student Guardian (subclass 580) visa and a Student (subclass 571) visa respectively. On 29 August 2014, the appellants applied for the Visas.
After setting out the background to the application, the primary judge then set out the salient aspects of the Tribunal’s decision. The Tribunal had observed that the second appellant had not attended the hearing to which he had been invited by the Tribunal, but the Tribunal decided to make its decision on his review without taking further action to enable him to appear before it, pursuant to s 426A of the Migration Act 1958 (Cth) (the Act): [7].
The primary judge referred to the fact that the Tribunal accepted that the appellants were citizens of the PRC: [8]. The primary judge then referred to a large number of inconsistencies and discrepancies in the evidence given by the first appellant, and the concerns expressed by the Tribunal regarding the credibility of the first appellant’s claims and evidence: [8]. At [9], the primary judge referred to the conclusions expressed by the Tribunal in its reasons at [66]-[71] to the effect that:
(a)the first appellant was not a reliable witness and the majority of her evidence should be rejected, including her claims, made both on her own behalf and on behalf of her son, that they have suffered harm in the past and fear harm from the Chinese government in the future;
(b)the Tribunal was willing to give the first appellant the benefit of the doubt about her rural land in the PRC being appropriated and demolished by the government for development purposes;
(c)however, the Tribunal rejected all the other claims which the appellants made, including claims that the first appellant had petitioned the government over the confiscated land, that she refused to sign a compensation agreement or accept compensation, that she suffered any harm from her claims, that she was detained or harmed in detention at any time, that she was monitored by police or anyone else, that her movements were restricted in any way, that she faced a gang of thugs in her village, that she was threatened, assaulted or suffered any other harm or was harassed in the village, that she and her son were in hiding before coming to Australia or that there was any reason for them to be in hiding, or that she suffered any harm in the PRC as she had claimed;
(d)the Tribunal was satisfied that the first and second appellants will not suffer any harm, let alone serious or significant harm, in the foreseeable future should they return to the PRC, or that either of the appellants will suffer any serious or significant harm because of their claims of corruption or inequality in the PRC in the foreseeable future; and
(e)accordingly, the Tribunal found that the appellants were unable to meet the criteria for grant of the Visas, and thus affirmed the Delegate’s decision.
The primary judge then turned to the grounds of review, which asserted that jurisdictional errors were made in four ways.
Ground 1 contended that jurisdictional error was made because the Tribunal did not accept the applicants’ claims “without evidence”. The primary judge said at [13] that it was well established that the Tribunal is not required to have “rebutting evidence” in order not to accept an applicant’s claims or evidence, citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ). The primary judge also said that, in any event, the Tribunal’s reasoning was based upon its assessment of the evidence that was before it, and in particular the Tribunal declined to accept the appellants’ core factual claims on the basis of its adverse credibility findings, which in turn were based on various inconsistencies and difficulties that the Tribunal identified in the first appellant’s evidence: [14]. The primary judge therefore rejected Ground 1: [15].
Ground 2 contended that jurisdictional error was made because the Tribunal “ignored” the appellants’ claims “with bias”. The primary judge said that it was well established that bias is a serious allegation that is required to be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J). The primary judge said at [18] that that had not been done, and the Tribunal did not ignore the appellants’ claims. The primary judge said that the claims that were advanced centered around the appellants’ contention that the first appellant had petitioned the government against the confiscation of her land, and that she and her family had been harmed and threatened as a result, and the Tribunal did not accept those claims due to the adverse credibility findings that it made, which were open to it based on the numerous inconsistencies and issues that it identified in the first appellant’s evidence: [18]. The primary judge said that there was nothing that had been raised by the appellants, or that was apparent from the primary judge’s own review of the materials, capable of establishing that the Tribunal’s mind was closed to persuasion, nor did the primary judge identify any matter that may cause a fair-minded lay observer reasonably to apprehend that the Tribunal may not have brought an impartial mind to the review: [19]. Accordingly, the primary judge rejected Ground 2: [20].
Ground 3 contended that jurisdictional error was made because the appellants were “not given enough chances to present [their] claims”. The primary judge said that the Tribunal’s procedural fairness obligations were limited by Pt 7 of the Act, the appellants were both invited to a hearing before the Tribunal pursuant to ss 425 and 425A, and as the second appellant did not attend the hearing, the Tribunal’s power under s 426A(1A) was enlivened: [22]. The primary judge accepted the Minister’s submission that its exercise was not unreasonable in circumstances where (as set out in [22]):
(a)the appellants had not responded to the Tribunal’s hearing invitation, which advised the appellants of the effect of s 426A, prior to the hearing;
(b)two SMS reminders were sent to the first appellant’s phone as reminders of the hearing;
(c)the Tribunal wrote to the appellants prior to the hearing requesting the second appellant’s attendance;
(d)the first appellant attended the hearing;
(e)the claims made on behalf of the second appellant were advanced by the first appellant; and
(f)there is no evidence that an explanation for the second appellant’s non-attendance, or request for a further opportunity to appear, was provided to the Tribunal.
The primary judge noted that the appellants were additionally provided with a written invitation to comment, after the hearing, on various difficulties in the first appellant’s evidence that had been identified by the Tribunal: [23]. The primary judge said that the material before the Court did not demonstrate that the appellants were denied a real and meaningful opportunity to present their case, nor did it demonstrate that there was some further opportunity to present evidence or claims that the Tribunal was obliged to provide, but did not provide, to the appellants: [24]. Accordingly, the primary judge rejected Ground 3: [25].
Ground 4 contended that jurisdictional error was made because the Tribunal “did not correctly consider the possibility that [the appellants] will be harmed if [they] return to China”. The primary judge said that the appellants had not explained how the Tribunal could be said to have “not correctly” considered their claims in this regard, beyond disagreement with the Tribunal’s decision: [27]. The primary judge referred to her Honour’s finding that it was open to the Tribunal not to have accepted the appellants’ core factual claims, based on the difficulties in the first appellant’s evidence that it identified in its decision and, in particular, the numerous inconsistencies that it identified in that evidence: [28]. Her Honour found that those issues provided a logical and probative basis for the Tribunal’s non-acceptance of the appellants’ claims, and the appellants had not demonstrated how that reasoning could be said to have been closed to the Tribunal: [28]. The primary judge said that her Honour had no power to review the merits of the Tribunal’s decision, nor to overturn it based upon the appellants’ disagreement alone: [29]. Accordingly, the primary judge rejected Ground 4: [30].
The primary judge thus concluded that no jurisdictional error was demonstrated by the grounds relied upon by the appellants, nor had any such error been identified upon her Honour’s own review of the materials.
The notice of appeal filed in this Court relies upon two grounds of appeal expressed as follows:
1.The primary judge erred in making an order that the Tribunal made no jurisdictional error.
2.The primary judge failed to consider the procedure fairness not fairly afforded in the applicant’s application process.
The Minister submitted that Ground 1 is simply a bare assertion and does not raise a proper ground of appeal, and that the failure to identify what appellable error the primary judge was said to have made was a sufficient basis to dismiss this ground. I do not accept that submission. A notice of appeal must state briefly but specifically the grounds relied on in support of the appeal: r 36.01(2)(c) of the Federal Court Rules 2011 (Cth). It has been held that a notice of appeal may be dismissed in circumstances where the notice is incomprehensible or entirely unrelated to the issues dealt with in the primary judgment: see Zegarac v Dellios [2007] FCAFC 58 at [7] (North J, with whom Weinberg J agreed), [12] (Jessup J), a case concerning a notice of appeal which was prolix rather than overly economical. That is not the case here. I read Ground 1 as being a challenge to the primary judge’s conclusions on the four grounds of asserted jurisdictional error relied upon before the primary judge. I also regard it as appropriate that the present notice of appeal be read generously to the appellants, given that they are not represented by lawyers and the first appellant is unable to speak English.
However, the Minister also submits that to the extent that Ground 1 is intended to contend that the primary judge ought to have found jurisdictional error on the basis of the four grounds advanced in the appellants’ application heard by the primary judge, the primary judge was correct to reject each of those grounds for the reasons her Honour gave, and no appellable error is apparent. I accept that submission. The primary judge was entirely correct to reject those four grounds for the reasons which her Honour gave.
As to Ground 2, it is not clear which “application process” the appellants intend to refer to. If the appellants are referring to the application process for the Visas, this ground was not raised in the Court below, and as such there can be no appellable error in the primary judge not considering it. A party on appeal is generally bound by its conduct of the case at first instance, and is not entitled to raise new issues on appeal. In a case where, had the issue been raised in the Court below, evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken afterwards: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; Water Board v Moustakas (1988) 180 CLR 491 at 497; University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 at 71.
If Ground 2 is to be read as impugning the primary judge’s reasons in respect of Ground 3 raised below (namely that the appellants were not given enough chances to present their claims), the ground is without merit. The primary judge correctly identified that the Tribunal’s procedural fairness obligations were limited by Pt 7 of the Act. Her Honour correctly accepted the Minister’s submission that the Tribunal did not act unreasonably by deciding to determine the second appellant’s application for review without taking any further steps to allow him to appear before it in the circumstances referred to above, as set out in [22] of the primary judge’s reasons. The primary judge also held that the appellants were not denied a real and meaningful opportunity to present their case: at [24]. In those circumstances, no appellable error on the part of the primary judge is established.
At the hearing of the appeal, the first appellant said that she was unable to understand the appeal and the documents which had been sent to her in relation to the appeal. The Minister suggested that the translator might be permitted to translate the grounds of appeal in the notice of appeal, and the three substantive paragraphs of the Minister’s written submissions addressing those grounds of appeal. I agreed to that course being taken. After that material was translated, the first appellant responded that she did not really understand the content of those matters. The first appellant also said that she would like to have more time and would also like to have a lawyer appointed by the Court. I did not understand that to be an application for an adjournment of the hearing. However, if such an application were intended, then I would have refused it. The appellants have had a sufficient opportunity to prepare for the hearing of the appeal today, taking into account that they have no legal training and the first appellant does not speak English, and significant resources have been applied for that purpose by the Minister and the Court itself. No concrete plan was put forward by the first appellant as to what would happen during the intervening period of any adjournment in order to improve her prospects of pursuing the appeal. Accordingly, there would not seem to be any tangible benefit in any adjournment of the hearing of this appeal, and there would be a clear prejudice to the Minister in having to meet the costs of any further hearing in the future. Further, it would not be in the public interest for the Court to have to devote further resources towards any further hearing of this appeal in the future.
Accordingly, the appropriate orders are that the appeal be dismissed, and the appellants pay the first respondent’s costs, as agreed or assessed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman. Associate:
Dated: 4 August 2023
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