FCC17 v Minister for Immigration and Border Protection
[2019] FCA 2080
•11 December 2019
FEDERAL COURT OF AUSTRALIA
FCC17 v Minister for Immigration and Border Protection [2019] FCA 2080
Appeal from: FCC17 v Minister for Immigration & Anor [2018] FCCA 2807 File number: NSD 1850 of 2018 Judge: CHARLESWORTH J Date of judgment: 11 December 2019 Catchwords: MIGRATION – protection visa – ground of appeal raising an argument not raised in proceeding below – argument cannot succeed on material before the Court on this appeal – whether an order for the production of the material should be made Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 36(2A), 65
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
FCC17 v Minister for Immigration & Anor [2018] FCCA 2807
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Date of hearing: 30 May 2019 Date of last submissions: First Respondent: 12 June 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr G Johnson with Ms J Strugnell Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 1850 of 2018 BETWEEN: FCC17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
11 DECEMBER 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority: FCC17 v Minister for Immigration & Anor [2018] FCCA 2807. The Authority had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa: s 36 of the Migration Act 1958 (Cth).
THE ACT
Section s 65(1)(a) of the Act provides that, after considering a valid application for a visa, the Minister is to grant the visa if satisfied that (among other things) the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have been fulfilled. If not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b) of the Act.
The criteria for a protection visa include the criterion in s 36(2)(a) (Refugee Criterion) and the alternate criterion in s 36(2)(aa) (Complementary Protection Criterion).
The Refugee Criterion in s 36(2)(a) provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; …
The word “refugee” in s 36(2)(a) is defined in s 5H of the Act, relevantly as follows:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:For the meaning of well founded fear of persecution, see section 5J.
That definition was introduced by amendments to the Act which came into force on 18 April 2015: see Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act). Prior to the amendments, the visa criterion prescribed by s 36(2)(a) of the Act was cast in terms requiring that the Minister be satisfied that the visa applicant was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
The phrase “well-founded fear of persecution”, as now used in s 5H(1)(a) of the Act, is defined in s 5J. The statutory definition of a “refugee” (together with the defined terms within it) largely adopts the words of Art 1A of the Convention. The prior jurisprudence of this Court and the High Court may be called in aid for the purposes of construing the more recently enacted provisions, subject of course to any differences in text or context.
In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Mason CJ said that a fear of persecution would be objectively well-founded if there is a real chance that the refugee will be persecuted if returned to his own country. His Honour said (at 389):
… I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen, per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
(footnote omitted)
McHugh J said at 429:
… a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a farfetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as ‘well-founded’ for the purpose of the Convention and Protocol.
The Complementary Protection Criterion in s 36(2)(aa) provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
The “real risk that the non-citizen will suffer significant harm” (the phrase used in s 36(2)(aa)) is to be understood as a reasonable possibility, as opposed to a remote chance that such harm will occur. When used to describe the degree of likelihood of significant harm occurring, the words “real risk” import the same test as the “real chance” test articulated in Chan: see Minister for Immigrationand Citizenship v SZQRB (2013) 210 FCR 505, at [242] — [247] (Lander and Gordon JJ).
As the majority said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 – 575:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
THE AUTHORITY’S DECISION
The appellant is a Shia Muslim from the Dhi Qar province in Iraq.
In support of his visa application the appellant claimed that he would be harmed in sectarian violence in Southern Iraq, either by reason of his status as a Shia Muslim or because of the security situation in the region more generally. Other claims were made in support of the visa application but they do not form the subject matter of this appeal.
The Authority concluded that the appellant did not fall within the definition of a refugee in s 5H(1) of the Act and so did not fulfil the Refugee Criterion. In relation to the appellant’s claim to fear harm because of sectarian violence or the general security situation, the Authority said (at [15]):
I accept that the applicant is a Shia Muslim. He has not claimed a fear of harm on this basis although the delegate considered whether this, and the security situation in southern Iraq more generally, would give rise to protection obligations. Considering whether the applicant faces harm from Shia militias or Shia armed groups due simply to being a Shia, I am not satisfied on the material before me that this is the case. In relation to whether there is a real chance that the applicant would suffer serious harm from the security situation more generally, including from Sunni armed groups, the DFAT Country Report notes that the security situation in Iraq is fragile and susceptible to rapid and serious deterioration with large scale conflict in some areas. ISIS and associated Sunni extremist groups are currently in control of large parts of northern, western and central Iraq, however the southern provinces including Dhi Qar remain under the control of the ISF. Violence between opposing Shia militias occurs and is more pronounced in Shia areas such as [redacted]. This is sometimes linked to other criminal activities, including robberies and kidnappings. However, the DFAT report suggests that the risk of being caught up in this is predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians. I am not satisfied that the applicant is more than an ordinary citizen and am not satisfied that the applicant faces a real chance of harm from Shia militias, Sunni groups or otherwise arising from sectarian violence. Although violent crime, including kidnappings and killings, does occur in [redacted], on the basis of the referred information I am not satisfied that it is at a level that would give rise to a real chance that the applicant would face harm, should he return.
(footnotes omitted)
The Authority referred again to these findings in the course of determining whether the appellant fulfilled the Complementary Protection Criterion. It concluded (at [21]):
… As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am not satisfied that the applicant would face a real risk of significant harm for the purposes of s 36(2)(aa) for these reasons, including when considered cumulatively.
(footnote omitted)
THE APPLICATION FOR JUDICIAL REVIEW
In the proceedings before the primary judge, the onus was on the appellant to show that the Tribunal’s decision was affected by jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173.
Of the grounds for judicial review before the primary judge, only the first is relevant to this appeal:
1.The Immigration Assessment Authority (‘the IAA’) at [15] considered whether the applicant faced a real chance of serious harm as a Shia Muslim if required to return to Iraq. The IAA concluded that it was ‘not satisfied that the applicant faces a real chance of harm from Shia militias, Sunni groups or otherwise arising from sectarian violence’, and it was ‘not satisfied that [violent crime] is at a level that would give rise to a real chance that the applicant would face harm should he return’. The IAA, in making these findings, erred in applying the real chance test, including by failing to properly consider the two risks of harm cumulatively.
The primary judge found no jurisdictional error of the kind alleged in that ground. His Honour said (at [21]):
The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons must be read as a whole. The Authority’s reasons in paragraphs 15 and 17 reflect adverse findings in relation to the risks, and also adverse findings in relation to the real chance risk [sic], in respect of the applicant being a Shia Muslim, as well as the general security situation, and ISIS and associated Sunni extremist groups, as well as criminal activities. The reference to the ‘factors as discussed’ was clearly a reference to the factors identified in paragraphs 15 and 16 and the earlier findings in relation to the applicant’s family remaining in their hometown and the brother not being missing in the context of the reference to the applicant’s profile.
THE APPEAL
The appellant appeared self-represented on the appeal. He relied on a single ground, expressed as follows:
The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (‘the IAA’), in a finding in paragraph 15 of its decision, misapplied the real chance of persecution test in a manner which constituted jurisdictional error. The authority stated that the country information indicates that citizens of Iraq ‘risk ... being caught up in’, and therefore seriously harmed by, sectarian violence and other criminal activities. While the risk is ‘predominantly borne by those who are actively involved in the militia or tribal group’, it is also borne by ordinary civilians. The country information does not indicate the level or degree of risk of serious harm faced by ‘ordinary civilians’. The Federal Circuit Court erred in dismissing this ground of review.
The ground of appeal raises an issue as to whether the country information upon which the Authority relied was capable of supporting its conclusion that there was not a real risk that the appellant would suffer significant harm by virtue of being caught up, as an ordinary citizen, in sectarian or generalised violence.
An issue arises as to whether this argument was advanced in the proceeding below.
I am not satisfied that the argument was encapsulated in the first ground of judicial review before the primary judge. The jurisdictional error there alleged was that the Authority had failed to consider cumulatively the risks that the appellant might face in his capacity as a Shia Muslim in light of the other claims he had made for protection.
None of the grounds for judicial review alleged that the Authority had erred by drawing a conclusion as to the degree of risk faced by the appellant as an ordinary citizen, nor did the grounds allege that it was not open to the Authority to make the assessment that it did on the country information before it.
At the hearing of this appeal, Counsel for the Minister acknowledged that although the argument now sought to be raised was not expressed in the grounds for review, it had been advanced in written submissions that the appellant’s former legal representatives had relied upon in the proceedings below.
In my view, the primary judge did not commit an appealable error by failing to consider and dispose of an argument advanced in written submissions that did not align with any one of the grounds for judicial review. The appellant was legally represented in the proceedings below and in the absence of an application for leave to amend, the primary judge did not err by confining the reasons for judgment to only those matters agitated in the grounds set out in the amended originating application before him. To the extent that the appellant’s legal representatives intended to rely on a different argument, they ought to have made an application to further amend the originating application. There is nothing before this Court to suggest that they did so. In the circumstances it cannot be said that the primary judge erred in failing to determine the argument on its substantive merits.
If I am wrong in that conclusion, I would nonetheless dismiss the appeal on the basis that the argument could not have succeeded on the material before the primary judge in any event. The argument was to the effect that the country information was not capable of providing evidentiary support for the Authority’s conclusion concerning the degree of risk of serious harm faced by ordinary civilians. The question of whether the Authority’s conclusion was open to it on the materials cannot be determined without reference to the materials themselves. The country information upon which the Authority relied was not in evidence before the primary judge, nor is it in evidence before me on this appeal.
Moreover, the appellant has filed no written submissions in support of his appeal. When invited to make oral submissions, he declined to do so. He expressed frustration (apparently justified) that he had been overcharged and poorly served by his former lawyers and complained that he could no longer afford a lawyer.
In light of the appellant’s self-represented status on his appeal, it remains to consider whether the Court should exercise its discretion to order the Minister to produce the country information so as to enable the merits of the appellant’s argument to be determined by reference to it. In all of the circumstances, I have concluded that no such order should be made, principally because the appellant has not sought to make any submission in support of his case whether orally or in writing. Despite the urgings of the Court he has expressed an unwillingness to participate in the hearing of the appeal in a meaningful way. It is not for this Court to conduct an unconfined assessment of the country information in the absence of any submission by the appellant as to its meaning or implications.
I am not satisfied that the primary judge committed appealable error by failing to determine the argument now sought to be advanced before me. On the material before me, the appellant cannot succeed on the argument in any event. It follows that the appeal must be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 11 December 2019
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