Eqj19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FCA 1476

FEDERAL COURT OF AUSTRALIA

EQJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1476  

Appeal from:

EQJ19 v Minister for Immigration & Anor [2020] FCCA 1208

File number(s):

NSD 1032 of 2020

Judgment of:

BURLEY J

Date of judgment:

28 November 2023

Catchwords:

MIGRATION – application for leave to appeal from decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm the decision of a delegate of the Minister to refuse to grant the applicant a protection visa – application dismissed  

Legislation:

Migration Act 1958 (Cth) s 476

Federal Circuit Court Rules 2001 (Cth) rr 44.12, 44.12(1)(a), 44.12(2)

Federal Court Rules 2011 (Cth) r 35.13

Cases cited:

Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

EQJ19 v Minister for Immigration & Anor [2020] FCCA 1208

Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

15

Date of hearing:

15 November 2023

Counsel for the Applicant:

The Applicant appeared in person

Solicitor for the Respondents:

Ms N Johnson of Mills Oakley

ORDERS

NSD 1032 of 2020

BETWEEN:

EQJ19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	BURLEY J
DATE OF ORDER:	28 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs.

3.The name of the first respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1. This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia (as the Federal Circuit and Family Court of Australia was then known) (FCCA); EQJ19 v Minister for Immigration & Anor [2020] FCCA 1208.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia in December 2013 on a temporary work (subclass 457) visa. In December 2015 he lodged an application for a protection (subclass 866) visa. In summary, he claimed his family had been Christians for generations and that he participated in secret worship at home. The government accused this underground church of being a criminal cult. The applicant was detained by the police in June 2006 and again, in November 2013 after the Government raided church gatherings. The applicant was beaten in police custody on both occasions. The applicant claimed he would be “persecuted mentally and physically” if he returned to China.

3. On 12 September 2016, a delegate of the Minister for Immigration and Border Protection (as the first respondent was then known) refused to grant the protection visa. The applicant then applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. On 25 October 2019 the Tribunal affirmed the decision of the delegate.

4. The applicant then applied to the FCCA for judicial review of the decision of the Tribunal, where he was self-represented. The FCCA dismissed the application following a show cause hearing conducted pursuant to s 476 of the Migration Act 1958 (Cth) under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).

5. The applicant now seeks leave to appeal from the decision of the primary judge and an extension of time within which to file his application for leave. Leave to appeal is required because a decision under r 44.12 of the FCC Rules is interlocutory in nature; FCC Rules r 44.12(2). An extension of time is required because the application for leave was required to be filed on or before 29 May 2020, in accordance with r 35.13 of the Federal Court Rules 2011 (Cth), which requires that applications for leave be filed within 14 days after the date the primary judgment was pronounced, or the order was made. The applicant filed his application for leave on 16 September 2020.

6. The applicant has affirmed and filed two affidavits in support of his application for leave.  One dated 20 May 2020 and the other dated 13 September 2020, which addresses his application for an extension of time and annexes a draft Notice of Appeal. In his second affidavit the applicant seeks forgiveness for the delay in filing the application on the basis that it was not easy for him to find a person to help him prepare the application documents.

7. In his draft Notice of Appeal, he states the grounds upon which he relies as follows:

   1.On 4 June 2006, while we had gathered atthe [l]ounge of my cousin’s home [name given] to study the Bible, four policepersens suddenly forced their way in. They seized our Bible and pictures of Jesua and took us to their police station for questioning. There I suffered blackout and fell on the ground. I was ordered to write a [sincere statement] of remorse and

   2.pay a fine of 2,000 yua[n]. They accused our our Christianity of being criminal evil cult. I had t[o] leave for Australia to seek protection.

   3.I think the member of AAT, [name] failed to take my whole reasons into account which caused [her] decision to be believed unfair to me.

   4.He also failed to comply with [s] 91R Migration Act 1958 because of his bias against me, given arise to jurisdictional error.

   5.Unfortunately The Federal Circuit Cour consented the decision of the AAT.

   (As per the original)

8. The applicant was self-represented before the Court and did not file written submissions in advance of the hearing. The first respondent who was represented by Mills Oakley, Solicitors, filed written submissions in advance of the hearing and appeared.

9. A grant of leave to appeal will be made where it is established that the decision below is attended with sufficient doubt to warrant it being reconsidered on appeal and where substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399.

10. The grounds advanced by the applicant are substantively the same as those advanced before the primary judge. It is sufficient for present purposes to address the merit of the grounds advanced.

11. In the first and second ground, which are to be read together, the applicant recounts the details of his claim to have been detained. This does not of itself purport to identify any basis upon which the Tribunal or the primary judge fell into jurisdictional error. Where a party is self-represented, it is rarely appropriate to dismiss an appeal ground, or a review ground, simply for lack of particularisation, unless the party has first been afforded an opportunity to explain orally the matters said to give rise to the appeal or review; DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] (Colvin J). In this case, at the hearing, the applicant was given an opportunity to, but was unable to articulate this ground any further. In such circumstances, the reasoning of the primary judge in finding that the ground does not identify any jurisdictional error on the part of the Tribunal, is plainly correct.

12. The third ground alleges that the Tribunal failed to take into account the whole of the reasons advanced by the applicant. The primary judge gave detailed consideration to the reasoning of the Tribunal. He found that the Tribunal’s findings flowed logically from and were reasonably open to it from the evidence before it. He also noted that the applicant provided no particulars of any aspect of the reasons that were said to have been overlooked. Again, despite prompting, the applicant, he did not elaborate on the ground in oral submissions during the hearing before this Court. After reviewing the decision of the Tribunal, my view is that the primary judge’s observations were correct.

13. The fourth ground alleges that the Tribunal was biased against the applicant. Such a contention was again not supported by any particulars to make it meaningful. When asked to explain the basis for this contention, the applicant said that the ground had been drafted by a friend and he does not know what details he could provide. The primary judge, after noting that the reference to s 91R of the Act was misplaced (as it clearly was), observed that an allegation of bias is a serious one that must be clearly made and distinctly proven, citing Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531, 546. He rejected the ground after finding that no inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.

14. After reviewing the decision of the Tribunal, I conclude that the primary judge was clearly correct to reject this ground.

15. As a result, in my view, the decision of the primary judge is not attended with sufficient doubt to warrant it being reconsidered on appeal. The application for leave to appeal must be refused with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

Associate:

Dated:       28 November 2023