FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 475
•27 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 475
File number(s): SYG 3158 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 27 May 2024 Catchwords: MIGRATION – Whether Tribunal constructively failed to exercise jurisdiction Legislation: Migration Act 1958 (Cth) ss 5J, 32, 65 Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 729
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
SZQPX v Minister for Immigration and Citizenship [2012] FCA 983
XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 19 April 2023 Place: Sydney Counsel for the Applicants (at hearing): Ms M Yu Counsel for the Respondents: Mr B Kaplan Solicitor for the Respondents: MinterEllison ORDERS
SYG 3158 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FXF18
First Applicant
FXG18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
27 MAY 2024
THE COURT ORDERS THAT:
1.Leave to rely on the proposed further amended application, filed for the applicants on 19 April 2023, is refused.
2.The application filed on 13 November 2018, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before me is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 October 2018, affirming decisions of two delegates of the first respondent to refuse the grant of Subclass 866 protection visas (visas) to each of the first and second applicants under s 65(1)(b) of the Migration Act 1958 (Cth) (Act).
DELAY IN DELIVERY OF THESE REASONS FOR JUDGMENT
These proceedings were heard on 19 April 2023, following which a number of issues arose. Those issues are addressed in an interlocutory judgment delivered on 18 August 2023 in relation to two interlocutory applications filed for the applicants by which they sought, inter alia, that the Court recuse itself: see FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 729 (interlocutory judgment).
Following delivery of the interlocutory judgment, the Court allowed a 14 day period to elapse before listing these proceedings for judgment, which reflected the time under r 35.13 of the Federal Court Rules 2011 (FCA Rules) for the applicants to file any application for leave to appeal from the interlocutory judgment. By reference to the date on which the interlocutory judgment was delivered, the last date for any application for leave to appeal to be filed in the Federal Court was 1 September 2023. No such application was made in time.
Accordingly, on 4 September 2023, I listed these proceedings for delivery of judgment which was to take place on 14 September 2023.
On 12 September 2023, the applicants made an application for extension of time in which to seek leave to appeal, pursuant to r 35.14 of the FCA Rules (Federal Court application).
On 13 September 2023, of my own motion, I vacated the judgment listing referred to at [4] above, in order that the applicants’ Federal Court application could be heard and determined, in circumstances where one of the issues before the Federal Court was whether this Court should have recused itself.
Judgment in respect of the Federal Court application was delivered on 24 May 2024, with orders made dismissing it: see FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 549 (Federal Court judgment).
On 24 May 2024, I re-listed these proceedings for delivery of the substantive judgment, to take place on 27 May 2024 at 2:00pm.
Other than this paragraph, and the foregoing 7 paragraphs above which reflect the intervening developments, these reasons for judgment are unchanged from those which were scheduled for delivery on 14 September 2023. I have not taken into account any matters raised by the applicants as recorded in the Federal Court judgment, nor the fact that the applicants sought leave to appeal from the interlocutory judgment, into account in determining these proceedings.
BACKGROUND
The background to this matter has been derived from the submissions of both parties and the Court Book (CB) and it does not appear to be in dispute, unless otherwise indicated. The applicants are Russian nationals who arrived in Australia on 5 April 2014, each holding a Subclass 600 Visitor visa. The first and second applicants are mother and daughter respectively. The applicants lodged their protection visa application on 2 May 2015 (CB 1 to 127).
In seeking the grant of protection, the first applicant claimed to fear harm in Russia for reasons including of her bisexuality and bisexual views, repressive policies and practices in Russia towards LGBT people, and government condoned anti-Semitism (CB 886 at [14]). As part of her evidence to the delegate, the first applicant said that she had legally changed her name to one implicit with Jewish identity, but was unaware of any actual Jewish antecedents in her family (CB 889 at [30] to [31]). The first applicant claimed that it had been the dying wish of her maternal grandmother that the second applicant be raised as a Jew (CB 889 at [31]).
The first applicant claimed that her maternal grandparents had pressured her to marry the second applicant’s father (despite having initially claimed that it was her parents who had insisted that she marry him) (CB 889 at [33]). The first applicant said that after their divorce in 2005, she had no communication with her ex-husband and he had no interest in the second applicant (CB 889 at [35]).
The second applicant claimed to fear harm in Russia for reasons including her progressive views on sexual diversity, equality and human rights, as well as anti-Semitic treatment, and harm from her father (CB 885 at [4]).
The second applicant’s visa application was refused on 24 February 2016 (CB 190 to 206) following which her application for review was lodged with the Tribunal on 23 March 2016 (CB 332 to 333) attaching a statement made by the first applicant (CB 334).
The first applicant’s visa application was refused on 23 June 2016 (CB 286 to 330), following which her application for review was lodged with the Tribunal on 20 July 2016 (CB 774 to 776).
On 7 July 2017, the Tribunal invited the second applicant to attend a hearing (CB 350). The hearing was postponed on a number of occasions at the applicants’ request, citing claims of stress, school commitments, and mental health issues (CB 885 at [7]). On 5 December 2017, the second applicant failed to appear before the Tribunal for hearing and was sent an “interim dismissal letter” (CB 422 to 428 and 885 at [7]).
Following an application for reinstatement made on 13 December 2017 (CB 429 to 465) the second applicant’s Tribunal review application was reinstated (CB 467). The second applicant was again invited to attend a hearing (CB 470 to 472), which she did on 1 February 2018 to give evidence and present arguments in relation to the review (CB 483 to 475 and 897 at [76]). The Tribunal also took evidence from the first applicant at that hearing. The Tribunal records that both applicants appeared confident and competent in their English skills, however the Tribunal hearing was conducted with the occasional assistance of an interpreter in the Russian language (CB 885 at [7]). A number of documents were submitted at the hearing (CB 476 to 497).
From 15 February 2018 onwards, the applicants sent an array of emails to the Tribunal attaching further documents, photographs and internet links (CB 506 to 736 and 818 to 833).
On 3 July 2018, the Tribunal invited both applicants to attend a hearing of the Tribunal on 27 July 2018 (CB 835 to 836). On 19 July 2018 the applicants requested that this hearing be postponed due to “stress related conditions” (CB 837), which application was refused (CB 839 to 840).
On 27 July 2018, each of the applicants appeared before the Tribunal to give evidence and present arguments (CB 876). The Tribunal again noted that, while an interpreter in the Russian language was present (CB 886 at [9]), assistance from said interpreter was only required intermittently.
On 15 October 2018, the Tribunal notified the applicants of its decision (made on the same day) to affirm the decisions of the delegates to refuse the grant of protection visas to each of the applicants (CB 880 to 915).
Tribunal decision
The Tribunal separately set out the claims for protection of the first applicant (CB 886 to 887 at [14] to [17]) and the second applicant (CB 887 at [18] to [19]), together with the various documents and evidence submitted by them to the Department (CB 887 to 888 at [20] to [27]).
The Tribunal noted that the delegates’ decision in respect of the first applicant contained evidence to the effect that the first applicant provided fraudulent evidence to authorities in the United Kingdom in support of a work visa application (CB 888 at [28]). The Tribunal went on to consider independent country information relating to sexual orientation (CB 892 to 894 at [58] to [59]) and anti-Semitism in Russia (CB 894 to 896 at [60] to [64]), before setting out the applicants’ respective evidence and submissions to the Tribunal (both written and oral).
The Tribunal’s findings are also separated in respect of the applicants.
Findings in relation to the first applicant
The Tribunal accepted that the first applicant is a Russian national (CB 905 at [108]). In relation to claimed mental health issues and psychological conditions, the Tribunal considered the evidence before it and attributed little weight to the reports which suggested those issues were corroborative of the first applicant’s account of feared harm in Russia (CB 905 at [109]).
The Tribunal was not satisfied that the first applicant was a person to whom Australia owes protection obligations under the Refugee Convention and found she did not meet the criterion set out in s 36(2)(a) of the Act.
In summary, the Tribunal:
(a)was satisfied the first applicant was able to give meaningful evidence at the hearings (CB 905 at [109]);
(b)considered mental health reports which referred to the first applicant having self-reported that her mental state was attributable to past persecution in Russia and anxiety regarding persecution in the future. The Tribunal referred to various claims made by the first applicant which were entirely independent of her claims in relation to Russia, including that she suffered drawn-out traumatic circumstances relating to a relationship breakdown with a man in Norway, and anxiety about abandoning the applicants’ lifestyles in Australia;
(c)was not satisfied that the first applicant genuinely identifies as being Jewish, nor that she had experienced discrimination on the basis that she had adopted a name implicit with Jewish identity. The Tribunal was also not satisfied that she faced a real chance of persecution in Russia in the reasonably foreseeable future for reasons of actual, or imputed, Jewish identification or identity (CB 905 at [110]);
(d)accepted the first applicant was “anti-Putin” (CB 905 at [111]) and had attended a public demonstration against the Putin regime in 2012, which resulted in a violent encounter with the riot police. The Tribunal accepted that while this incident may have instilled fear in the first applicant, such fear was not well-founded, and she could continue to express her political opinions in Russia without facing a real risk of significant harm (CB 906 at [112]);
(e)accepted that the first applicant genuinely identifies as being bisexual, notwithstanding her “main” relationships had been heterosexual (CB 906 at [114]);
(f)accepted that the first applicant was divorced and had been subjected to occasional violence by her ex-husband. However, the Tribunal found that the fact the ex-husband consented to their daughter leaving Russia to reside with the first applicant in Norway, was strong evidence that any acrimony between the couple had abated. The Tribunal did not accept that the ex-husband spread rumours about the first applicant’s sexual orientation to harm her (and/or their daughter), or that the first applicant was forced to pay “hush money” to avoid harassment by him (CB 907 at [115]);
(g)found that the first applicant had been evasive and inconsistent in her claims about the extent of her contact with the ex-husband (CB 907 at [117]), and considered the claims in relation to him to be exaggerated. The Tribunal was not satisfied that either of the applicants would be at risk of harm perpetrated by the ex-husband/father in Russia for any reason, nor that the ex-husband had any involvement in alleged attacks on the first applicant and/or her sister in 2014 (CB 907 at [116] to [118]);
(h)found that the harm described by the first applicant (insults and verbal intimidation by locals) did not amount to persecution, and did not accept that the she was ever attacked in 2014, let alone for reasons of her sexual orientation (CB 907 at [119]). It also found that if such an attack had occurred, this would have been an isolated incident, and not systemic (CB 908 at [121]);
(i)was not satisfied that the first applicant had a well-founded fear of being raped in Russia (CB 908 at [120]);
(j)was not satisfied that there was a real chance of her being persecuted by the Russian authorities for reasons of her bisexuality, imputed lesbianism or sexual orientation (CB 908 at [121] and [123]);
(k)was not satisfied that she had any subjective desire to express her sexual orientation through her attire, or genuine interest in displaying pro-LGBT motifs on her person, nor that her reason for refraining from doing so was due to fear of persecution in Russia (CB 908 at [122]);
(l)accepted she had raised her daughter to be tolerant and embracing of people irrespective of their sexual orientation or gender identity in defiance of Russian law. However, the Tribunal was not satisfied that this law was used by the authorities to persecute gays, lesbians or bisexuals who have teenage children. By reference to country information, the Tribunal noted that there was an absence of evidence to support the suggestion that Russian authorities were interested in the first applicant’s ability to influence the second applicant (CB 908 at [124]);
(m)was not satisfied that the first applicant faced a real chance of indirect persecution as a result of attitudes towards her daughter identifying as Jewish (CB 909 at [125]);
(n)gave no weight to the account of the second applicant having been forced to sign a document (at age 9 or 10) (CB 909 at [126] and gave some weight (in its overall decision) to the first applicant’s evident lack of interest in seeking asylum in any of the Schengen countries and/or other Convention signatory states in the past while outside Russia (CB 909 at [127]); and
(o)was not satisfied, on the evidence before it, that the first applicant would face a real chance of being persecuted in Russia in the reasonably foreseeable future for separate or cumulative reasons of having attended LGBT events and related activities outside of Russia (CB 909 at [128]) or for having sought asylum in Australia (CB 909 at [129]).
Findings in relation to the second applicant
The Tribunal found that the second applicant did not satisfy the criterion set out in s 36(2)(a) of the Act. In summary, the Tribunal:
(a)found that, despite her diagnosed anxiety, she was able to give meaningful evidence during the hearings. It also found there were “a lot more potential factors” affecting the second applicant’s mental health (CB 910 at [132] to [133]) but gave little weight to the suggestion that the reported psychological conditions of the second applicant corroborated a well-founded fear of persecution in Russia;
(b)accepted that the applicant daughter was a Russian national, genuinely identified as a Jew and may be considered by some Jewish institutions to be Jewish. It also accepted that she would be imputed in Russian society to be Jewish and therefore part of a socio-political minority, and that she had been the subject of bullying at her school. However, the Tribunal did not accept (for various reasons which it gave) that the second applicant faced a real chance of being persecuted in Russia for reason of her Jewish identity in the reasonably foreseeable future (CB 910 at [134]);
(c)was not satisfied that the second applicant would be persecuted in Russia in the reasonably foreseeable future because of her membership of a family which includes her bisexual mother (CB 911 at [135]);
(d)was not satisfied that she would (or need to) modify her behaviour to avoid persecution in Russia. The Tribunal looked at the kind of activities in which the second applicant had been involved through her school and social circles in Australia, and considered it “mere bald speculation” that she would publicly engage in human rights activism in Russia, but for the fear of being persecuted (CB 911 at [136]). The Tribunal was not satisfied on the evidence before it that the second applicant would be persecuted in Russia for having attended LGBT events outside of Russia (CB 911 at [137]);
(e)was not satisfied that the implementation of laws which unfairly discredit foreign-funded NGOs in the public domain as “foreign agents” would give rise to a real chance that the second applicant would be persecuted in Russia (CB 911 at [139]), if she were to join an NGO;
(f)was not satisfied that the second applicant faced a real chance of being persecuted in Russia in the reasonably foreseeable future for reasons of her political opinion, even if publicly manifested, nor that she would have to alter her behaviour to avoid persecution (CB 911 to 912 at [140]). The Tribunal was further not satisfied that the second applicant faced a real chance of being persecuted in Russia for having sought asylum in Australia (CB 912 at [141]);
(g)was not satisfied that the second applicant faced a real chance of being persecuted by her father (noting the inconsistent evidence in relation to this claim), nor for reasons of or in connection to, her having been forced to sign a particular document when she was younger (CB 912 at [142] to [143]); and
(h)found that the second applicant’s fear of being raped on return to Russia was also based on speculation, and that there was no evidence to suggest that her lived circumstances in Russia exposed her to a risk of rape, assault or molestation, nor would they in the reasonably foreseeable future (CB 912 at [144]).
The Tribunal ultimately found at [145] to [146] and [155] that neither of the applicants faced a real chance of serious harm amounting to persecution for the purposes of engaging the refugee criterion in s 36(2)(a) of the Act, nor a real risk of significant harm for the purposes of engaging the complementary protection criterion in s 36(2)(aa) of the Act (CB 912 to 913).
Further, having considered all the evidence before it, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of either of the applicants being returned to Russia, there is a real risk that they will suffer significant harm (CB 912 at [147] to CB 913 at [155]). Accordingly, the Tribunal was not satisfied that either of the applicants was a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act.
Application to this Court
The applicants commenced these proceedings by an application to show cause filed with the Court on 13 November 2018, at which time they were unrepresented. The matter was initially docketed to another Judge of the Court (first primary Judge). On 6 December 2018, a Registrar of the Court made orders by consent for the preparation of the matter for hearing (2018 Orders) which included leave to the applicants to file any amended application by 28 March 2019, and next listed the matter for callover on 18 February 2020. The 2018 Orders also included orders appointing the first applicant as the litigation guardian for the second applicant (who was still a minor, albeit approximately 17 years old), together with some notes pertaining to those orders.
On 28 March 2019, the first primary Judge made orders (in Chambers) by consent extending the time for the applicants to file an amended application and evidence to 29 August 2019. On 22 July 2019, an amended application was filed within the time allowed by the grant of leave (Amended Application). By the footer to the Amended Application, it was apparent that it had been prepared by Counsel, who was acting for the applicants on a direct access basis.
On 17 February 2020, (being the day before the scheduled callover) a Registrar of the Court made orders by consent which included that the matter be stood over for further callover before a Registrar, or for final hearing before the first primary Judge, at a date and time to be administratively advised.
The matter was later placed in the central migration docket as part of an administrative reform for all migration cases in this Court which did not have a listed final hearing date at that time. The proceedings remained in the central migration docket until 8 December 2022, when they were docketed to me by the Registry. On that date, I made orders in Chambers listing the proceedings for final hearing before me on 19 April 2023, together with orders for the preparation of the matter for that hearing. Those orders included a fresh grant of leave to the applicants to file any further amended application and evidence on or by 22 March 2023.
Substantive hearing
The substantive hearing in this matter took place at 2:15pm on 19 April 2023. Each party was represented by Counsel. Each of the applicants was present for the substantive argument in the matters which did not commence until after the arrival (during a brief adjournment) of the first applicant.
Matters relating to the conduct of the substantive hearing are set out in the interlocutory judgment. In the circumstances which are set out at [11] to [14] of the interlocutory judgment, the litigation guardian order was vacated, and has not been reinstated.[1] Of particular relevance to these reasons for judgment are the following parts of the interlocutory judgment at [15] to [16] which warrant being set out again (emphasis in original):
…Counsel for the applicants sought leave to rely on a further amended application which had been circulated on the morning of the hearing. The amendment in essence, sought to meet issues raised by the first respondent’s written submissions (see [16] below). Leave to amend was opposed by Counsel for the Minister solely on the basis that the additional proposed grounds lacked merit. The parties were in agreement that the question of leave could be deferred for determination as part of the final judgment in the matter, once that merit had been considered.
The proposed further amendment arose in the following context. By the amended application filed in 2019, the sole ground of review alleged an error in respect of how the Tribunal dealt with a claim of the second applicant only. In opposing the proposed further amended application the Minister submitted as a consequence of that ground, that even if jurisdictional error were to be established, writs should issue in respect of the second applicant only. As is customary, the Minister’s written submissions were filed only shortly before the final hearing, and because the proposed further amended application was only circulated in response thereto on the day of the final hearing, time was necessarily taken at the hearing by all parties in ventilating the additional issue which had not yet been canvassed in writing. As part of that discourse, there was discussion about there being utility in providing the Court with parts of the relevant visa application for Form 866 (namely Form 866D), as at the point time at which the applicants had made the visa application. This becomes relevant to certain complaints made by the applicants later.
[1] See interlocutory judgment at [106] to [114]
Accordingly, it remains necessary to address the question of whether leave should be granted to the applicants to rely upon the proposed further amended application. The first respondent’s position at hearing was that leave should be refused because the proposed amendment lacked merit.
As is detailed above, the proposed further amended application was intended to meet a contention raised by the Minister in written submissions. Between the final hearing and a directions hearing held on 9 May 2023, the solicitor for the first respondent wrote to the Court with the applicants copied in the following terms (original emphasis):
Dear Associate
I refer to the attached orders made by her Honour on 19 April 2023 which require the first respondent to file and serve any additional evidence and written submissions on or by 3 May 2023.
I am instructed that should the applicants succeed in respect of ground one of their application, the first respondent does not wish to be heard in respect of relief being withheld in respect of the first applicant and accordingly, does not intend to file any further submissions or evidence.
At the directions hearing on 9 May 2023, the solicitor for the first respondent said that
…the first respondent’s position would be any further submissions to be filed by the applicant could only address that discrete issue which is an issue that the first respondent no longer seeks to press and so that’s set out in my email to the court.[2]
[2] Transcript 9 May 2023 T13.44 to T13.47
On the foregoing basis, the Minister no longer asserts that, if jurisdictional error were to be established, the proceedings should only be remitted in respect of the second applicant. As such, the proposed further amendment is otiose because the contention it sought to meet is no longer advanced. Accordingly, leave to file the proposed further amended application is refused. I will so order. It follows that it will not be necessary to address several of the matters which were ventilated for the parties in anticipation that the further amended application might be the subject of leave. That includes the matters which were to be informed by provision of the point in time version of visa application Form 866D.
At hearing, the three volume Court Book filed by the first respondent was tendered, without objection, and marked Exhibit “1R”. Counsel for the applicants confirmed that there was no evidence relied upon, other than what was contained in the Court Book.[3]
[3] Transcript 19 April 2023 T5.25
Written submissions were filed for the respective parties, together with written submissions in reply filed for the applicants on the day of hearing to address the (now otiose) additional issue about remittal.
Ground of review
By the Amended Application, the applicants raise a single, particularised ground of review as follows:
1.The Second Respondent (the Tribunal) erred by constructively failing to exercise jurisdiction.
Particulars
a. The Tribunal, at [136] of its decision, found that among other things, the Second Applicant was a supporter of LGBT and other human rights, but that she would be deprived of opportunities to publicly demonstrate her support for LGBT persons in Russia.
b. The Tribunal, at [138] of its decision, accepted that the Second Applicant had a “highly developed sense of justice and a genuine interest in the protection and advancement of human rights”. The Tribunal also accepted that the Second Applicant would be inclined to manifest her opposition to the Putin regime by joining demonstrations in Russia and by involving herself with non-government organisations (NGOs).
c. In making the findings referred to above at (a)-(b), the Tribunal did not properly consider, or make clear findings on:
i) why it was “mere bald speculation” that the Second Applicant would publicly engage in human rights activism in Russia but for the fear of being persecuted;
ii) why laws which discredit foreign-funded NGOs in the public domain as “foreign agents” would not result in persecution towards the Second Applicant, in the event that she were to join an NGO in Russia;
iii) whether anti-propaganda laws in Russia would operate such that it had a discriminatory impact on the Second Applicant.
Applicants’ submissions
The essence of the ground of review is that, in dealing with the second applicant’s claims, the Tribunal did not properly consider those claims, nor make clear findings in relation to them.
The applicants rely on the well-established principle that the Tribunal is required to consider protection claims as made and those which squarely arise on the materials, citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [23] to [24] per Gummow and Callinan JJ and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61] per Black CJ, French and Selway JJ. The applicants say that the findings of the Tribunal at [136] to [140] (inclusive) (CB 911 to 912) are “problematic” when considered against the aforementioned principles, such that the Tribunal should be found to have constructively failed to exercise jurisdiction, citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41] per Gaudron J.
The first basis for this assertion arises from a finding at [136] of the Tribunal’s reasons where it stated (emphasis added):
Looking at the kinds of activities in which the applicant daughter has been involved through her school and her social circles here, I consider it mere bald speculation that she would publicly engage in human rights activism in Russia but for the fear of being persecuted.
The applicants say that there are no reasons given to ground the finding that the second applicant would not otherwise publicly engage in human rights activism in Russia, but for a fear of being persecuted. This is said to be additionally erroneous because the Tribunal had accepted earlier at [136] that the second applicant was a supporter of LGBT and other human rights, and that expressions of tolerance for LGBT persons would be characterised by Russian law as “propaganda”. The applicants point to country information referenced earlier in the Tribunal decision (CB 892 to 894 at [59]) which is said to indicate that distribution of propaganda had been criminalised.
The second basis for the alleged constructive failure by the Tribunal is said to arise from the findings at [138] of the decision (CB 911), namely that the second applicant had a highly developed sense of justice and genuine interest in the protection of human rights, and she would be inclined to manifest her opposition to the Putin regime by joining demonstrations and involving herself with NGOs on return.
The applicants rely on the findings which immediately follow in the reasons for decision, to the effect that new laws in Russia discredited “foreign-funded and even partially foreign funded NGOs in the public domain as ‘foreign agents’” and that the implementation of such laws would not give rise to a real chance of harm to the second applicant if she joined an NGO on return. The applicants say that on the basis of these accepted facts, the Tribunal was required to turn its mind to why the second applicant would not be persecuted and, specifically, why such laws were ones of general application given their apparently discriminatory effect on a particular section of the population, citing Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [19] to [21] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and [72] per Kirby J.
The applicants contend that the above-mentioned failures constitute errors on the part of the Tribunal, and that they are material.
First respondent’s submissions
In respect of the first particular to ground 1, which challenges the Tribunal’s finding of “mere bald speculation” that the second applicant would publicly engage in human rights activism in Russia but for the fear of being persecuted, the first respondent says that it is incorrect to say the Tribunal gave no reasons for this finding.
Rather, in making the finding in question the first respondent says the Tribunal had regard to:
(a)the fact that the second applicant was “a supporter but not an activist or leader in the matter of LGBT and other human rights” (CB 769 at [136]);
(b)the unlikelihood of the LGBT community being able to stage LGBT cultural and socio-political events in Russia, thereby depriving the second applicant of the ability to demonstrate publicly her support for LGBT persons in Russia; and
(c)“…the kinds of activities in which the [second] applicant …ha[d] been involved through her school and her social circles here” (CB 911 [136]).
The first respondent says the fact the Tribunal drew a distinction between mere support for LGBT causes on the one hand, and activism or leadership in the matter of LGBT rights on the other, is a matter of moment. In this regard it is contended that the second applicant was found by the Tribunal to fall into the former category (namely, mere support). The first respondent additionally relies on the fact that, when asked by the Tribunal whether she had either discussed issues of particular relevance to LGBT persons, or felt any need or reason to support LGBT issues in Russia, the second applicant responded that she “had not” (CB 898 at [85]) and “did not know” (CB 899 at [85]), respectively.
The first respondent also says that the aspect of this particular which relies upon country information about dissemination of propaganda being criminalised in Russia, mis-characterises the source material, and does not take the ground further.
In the interests of completeness in relation to this particular, it was noted for the first respondent that, while the applicants did not appear to suggest that the Tribunal’s findings (at [138]) were inconsistent with the impugned finding at [136], even if such a suggestion were made, it could not be borne out. This was said to be because the findings at [138] concerned a somewhat different topic from that of LGBT rights. In any event, there was no acceptance by the Tribunal that the second applicant would be so heavily involved in demonstrations in Russia as to be labelled a human rights “activist” or a “leader”. The first respondent submitted that the notion the second applicant would engage in demonstrations only as permitted by the Russian authorities lent support to the very finding in [136] which the applicants sought to impugn.
In respect of the second particular of the alleged constructive failure, the first respondent says that the alleged incongruity of the finding at [139] does not arise. The first respondent relies on [103] to [104] of the Tribunal’s decision where it set out the available material about the laws in question (CB 902). That part of the Tribunal’s reasons warrant setting out in full (CB 760 at [103] to [104]) (footnotes omitted):
I note that there is a multitude of NGOs operating in Russia to monitor and challenge the government’s performance with regard to human rights. These include the Russia Glasnost Defence Foundation and Sakharov Centre. There is a Moscow Research Center for Human Rights (MRCHR), set up in 1993, which operates as an umbrella group for about a dozen human rights nongovernmental organisations; it was set up in 1993. Several of Russia’s NGOs are completely home-grown, while other receive donations from outside Russia. In recent years, laws have been passed to declare as “foreign agents” those NGOs that receive funds from abroad. The Sakharov Centre is one such “foreign agent”. As reported by Deutsche Welle,
This restriction is a direct consequence of a law that came into force five years ago: on 21 November 2012. Under the law, non-governmental organizations which are politically active and receive overseas funding are obliged to register as "foreign agents." In addition, they are required to make this status publicly visible, on their websites, for instance, and they must disclose their funding sources at regular intervals. Human rights organizations are most affected, but also NGOs which campaign on behalf of the environment or health care issues.
Various commentators on the introduction of these laws, which allow for funding audits and authorise police raids, argue that they unfairly discredit foreign-funded and even partially foreign-funded NGOs in the public domain.
The first respondent says that what is absent from the aforementioned country information is any suggestion of a real chance that persons associated with (or more specifically who are members of) NGOs would be subjected to “serious harm” within the meaning of s 5J(4)(b) (read with s 5J(5) of the Act). Similarly, there is no suggestion that such persons would suffer “significant harm” within the meaning of s 36(2A) of the Act, even if the NGO was required to register as a “foreign agent” in Russia.
The first respondent says that while the new laws appear to discredit (in a discriminatory manner) any Russian NGOs which receive foreign funding, any discrimination would constitute neither persecution nor significant harm sufficient to satisfy the criteria in s 36(2)(a) or 36(2)(aa).[4] That is said to be so even if it was extrapolated out to apply to members of those NGOs, which was by no means supported by the material.
[4] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J and SZQPX v Minister for Immigration and Citizenship [2012] FCA 983 at [33] per Cowdroy J
As has already been made clear, the first respondent did not press the submissions which sought dismissal of proceedings against the first applicant, even if jurisdictional error were to be found.
Consideration
Human rights activism finding
Unsurprisingly, each of the particulars to the ground of review seek to put the applicants’ case at its highest. However, in each instance, in seeking to make good the error alleged, the applicants have added a gloss to the findings of the Tribunal in question and/or the material which is said to have been overlooked.
The first particular to this ground alleges that the Tribunal did not give reasons for the finding that it would be “mere bald speculation” that, if returned to Russia, the second applicant would be publicly engaged in human rights activism but for a fear of being persecuted. However, the submissions made for the first respondent at [52] above are accurate. The Tribunal’s reasons do explain the basis for the finding.
The finding at [136] (CB 911) must be considered in the terms in which it was made by the Tribunal. Specifically, the Tribunal was comparing the evidence of the kinds of activities in which the second applicant had been involved throughout her schooling (and extra-curricular activities in that same period), as a basis for assessing the type of activities in which she might engage on return to Russia.
A review of the material in the Court Book reveals the following about the second applicant’s school-era activities:
(a)a certificate of appreciation dated 25 May 2014 and issued to the second applicant by a group called Conservation Volunteers for recognising of her “valuable contribution as a Conservation Volunteer” (CB 555);
(b)a reference letter from “NSW Friendship Circle” dated 28 June 2015 which attests to the second applicant being a volunteer in a program to assist children with special needs (CB 546);
(c)a screenshot from a website entitled “jwire.com.au” including a photo which appears to show the second applicant in a group of young people, with the by-line “Hundreds of volunteers mostly school students manned 50 phones in shifts on JNF’s Green Sunday in Sydney” (CB 588 to 589);
(d)school reports pertaining to the second applicant for the year 2017 ((CB 514) (semester 1 report) and (CB 516) (semester 2 report)).
(i)The semester 1 school report included the following summary (anonymisation added):
[FXG18] has ensured she is highly involved with co-curricular activities Rhythmic Gymnastics Team, Amnesty Group, Environment Group, Gender Equity Group, Politics Club, Pride Alliance and [name] Debating…
(ii)The semester 2 school report included the following summary (anonymisation added):
…she is a member of a number of groups at [School Name], including the Environment Group, Amnesty Group and the Gender Equity Group, which indicate her social commitment to social issues of the day. [FXG18] completed her 15 hours of Service Learning in the Community at Hinana[5] Youth Group…
[5] A handwritten annotation to this passage underlines the words “Hinana Youth Group”, and includes a handwritten line from the underlined portion and the words “Jewish movement Australia”
(e)a reference letter from the headmistress of the second applicant’s school dated 21 July 2017 which states (anonymisation added) (CB 566):
Since her enrolment at [school name], [FXG18] has represented the school in the [Name] Debating Competition and been involved in an extensive range of co-curricular activities. She is presently participating in Rhythmic Gymnastics, and is a member of a range of clubs including Amnesty International Group, the Environment Group, the Gender Equity Group and the Pride Alliance Group.
(f)a reference letter dated August 2017 from the Assistant Minister of a particular Anglican Church (CB 407) which relevantly says of the second applicant:
She is a thoughtful person who has been keen to help out in a variety of activities, which we have run. She has used her photographic skills and has printed cards and given them as gifts to various people, as well as making a ginger bread house for our church staff to enjoy last Christmas. She has also attended one of our recent youth camps
(g)an undated character reference pertaining to the second applicant which appears from its content to have been written by a friend of hers (CB 521) (first peer reference). The first peer reference included the following statement (anonymisation added):
[FXG18] is a an active member of groups such as amnesty international, Environmental and LGBTQ pride Alliance groups and openly expresses her views about being bisexual which she couldn’t do back in Russia.
(h)an undated reference from “Hineni Youth & Welfare Australia Inc” attesting to the second applicant having attended youth activities and leadership seminars (CB 578). The second paragraph of which describes the organisations activities as:
an opportunity for leaders and participants alike to engage in exploring Judaism, delving into world issues, empower children’s self esteem and confidence, as well as meet new people.
[FXG18] is a valued member of Hineni Youth & Welfare through her kind nature, problem solving skills and leading by example.
(i)on 5 March 2018, the second applicant sent an email to the Tribunal (CB 610) attaching photos and saying (errors in original, anonymisation added):
Dear Member,
I was just wondering if I could still attach the photos from Mardi Gras 2018 to my file. Im sorry for the delay.
Kind regards,
[FXG18]
(j)an undated character reference pertaining to the second applicant which appears from its content to have been written by a classmate (CB 677 to 678) (second peer reference). The second peer reference included the following statement (anonymisation added):
Not only has [FXG18] showed commitment to her curricular activities, but she has also contributed to many extra- and co-curricular activities. During her time at [school name], [FXG18] participated in gymnastics, debating and was a member of Amnesty, Environmental and Gender Equity Club. [FXG18] showed passion for these clubs by participating, and running, several different initiatives. I was also a member of Amnesty and Environmental Club, and in these clubs I saw firsthand [FXG18]’s enthusiasm and passion for the different causes we would support. In particular, for Environmental Club in 2017, [FXG18] and I participated in many of its initiatives, including attending a “Save Our Trees” protest, raising money through the selling of environmentally-friendly keep cups, and the running of our Instagram page to promote our club throughout the school. These endeavours has shown her commitment to improving Australia, something that she is thinking about pursuing as a career through being a lawyer once graduating.
(k)an undated character reference pertaining to the second applicant which appears from its content to have been written by a friend (CB 681 to 682) (third peer reference). The third peer reference included the following statement (anonymisation added):
[FXG18]’s character is a complex one to describe…From diligently preparing notes for school to spending time participating in Sydney’s Jewish community, to being involved in community service and jobs that she is invested in and passionate about, it is amazing that she still has time for the people in her life.
In summary, the above material from the Court Book demonstrates that the second applicant’s social justice endeavours were primarily focussed on membership of certain clubs at her school. In terms of actual activities beyond club memberships, there was evidence before the Tribunal of an occasion on which the second applicant volunteered with special needs children, and another which appears to pertain to a telephone activity for an environment-based endeavour. The height of the evidence of an activity which could come closest to approximating activism is the applicants’ attendance at the 2018 Sydney Gay and Lesbian Mardi Gras (Mardi Gras). In that regard the Tribunal found as follows (CB at [101]):
The applicant mother referred me to photographs of her attending a recent Sydney gay and Lesbian Mardi Gras with the applicant daughter. She said that they marched part of the way in the parade with Amnesty International due to her having done volunteer work with that organisation, before moving to the sidelines to watch.
Based on the material before it, it was open to the Tribunal to conclude that extrapolating from school club memberships and one attendance at the Mardi Gras, to “human rights activism activities”, would be speculation. It was open to the Tribunal to consider that minor social endeavours and memberships, and Mardi Gras attendance, while evincing an affinity for social issues were not akin to “human rights activism”. In relation to the second applicant’s Mardi Gras attendance, the Tribunal found at [136] that:
Overall, I find that the applicant daughter is a supporter but not an activist or leader in the matter of LGBT and other human rights. I give some weight to the fact that, without prejudice, she willingly goes along with her mother, who occasionally attends LGBT cultural and socio-political events when and where they occur.
The evidence before the Tribunal did not demonstrate anything beyond student-level interests and social activities. As such, the matters addressed by the Tribunal (as summarised by the first respondent (see [52]) above) provide logical and evidential bases to ground the finding that the second applicant would not engage in human rights activism (whether for LGBT causes or any others) in Russia for reasons other than the fear of being persecuted for doing so. The reason was, in essence that because she had not actively done so in Australia (albeit was amenable to accompanying her mother to certain events), she was unlikely to do so in Russia either.
I also accept the first respondent’s submissions in relation to the second applicant’s own evidence as given to the Tribunal (see [53] above), as providing a further basis for the Tribunal having reached its views in this regard that the applicant, while a supporter or ally of certain causes, was not an activist.
Propaganda
The first particular to ground one has another component to it. Namely, that the Tribunal found the second applicant to be tolerant towards LGBT persons and accepted “that tolerance of minority sexual orientations is a “political opinion”, for the law in Russia has effectively made it so by referring to expressions of such tolerance as “propaganda” (CB 911 at [136]).
The relevant country information summarised by the Tribunal is set out more fulsomely earlier in its decision. Relevantly, at [59] of the reasons (CB 893), the material discloses:
The law criminalizes the distribution of “propaganda” of nontraditional sexual relations to minors and effectively limits the rights of free expression and assembly for citizens who wished to advocate publicly for rights or express the opinion that homosexuality is normal. Examples of what the government considered LGBTI propaganda included materials that “directly or indirectly approve of persons who are in nontraditional sexual relationships” (see section 2.a.).
The applicants have mischaracterised the import of the country information in question. A plain reading of that country information as extracted above indicates that there has been a criminalisation of one specific matter, and a limitation of another.
The first is the distribution of propaganda which advocates for “non-traditional sexual relations” to minors. The country information indicates that this has been criminalised.
The second, albeit contained in the same sentence is that the right to freedom of expression an assembly for persons who wish to advocate publicly for LGBT rights or express the view that homosexuality is normal, has been effectively limited.
The interpretation contended for by the applicants conflates those two concepts. It appears that the Tribunal may also have mistakenly grouped the two concepts together in its summary at [136]. However, a full and contextual reading of the Tribunal’s decision as a whole reflects that it did properly understand the country information when considering a claim by the first applicant (CB 900 at [93]) where:
She said that, because there are laws against the distribution of “propaganda” of nontraditional sexual relations to minors, there is a risk that her actions and her bisexuality could be regarded as influencing her daughter.
It is clear that where (at [136]), the Tribunal was referring to the second applicant supporting tolerance towards LGBT persons, this was discussed in the context of how such tolerance manifested itself. To the extent that the country information indicated that in Russia there were now limits on citizens who wished to advocate publicly for rights or express the opinion that homosexuality is normal, it was open to the Tribunal to find for the reasons that it did (including those summarised earlier in relation to this particular) that the second applicant would not need to modify her behaviour in this regard in order to avoid persecution in Russia.
Overall, I am not satisfied that the errors contended for by the first particular to ground 1 are made out.
NGOs
The second particular to the ground of review takes issue with the findings of the Tribunal in relation to NGOs. The relevant material to which the Tribunal had regard has already been extracted at [55] above.
In XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks-Smith and Anderson JJ the Full Federal Court said the following at [27]:
In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 )). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] –[15] (Allsop J (as his Honour then was)).
In relation to this particular to ground 1, a plain reading of the Tribunal’s decision does not reveal any error as contended for. It is very clear that while the Tribunal accepted the second applicant’s socially-minded values may be at odds with the Putin regime, such that she might attend permitted demonstrations in Russia (or even involve herself with an NGO), the decision makes plain that the Tribunal understood the difference between the characterisation of the NGOs and the treatment of their members, by its findings at [139] (CB 911).
I accept the submissions of the first respondent (see [58] above) in this regard.
The second particular to ground 1 is not demonstrable of error of the kind alleged or at all.
CONCLUSION
The applicants have failed to establish jurisdictional error on the part of the Tribunal. In the absence of such error, the decision is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs, noting the concession made for the Minister at the interlocutory hearing in this matter that it would be appropriate that costs only be sought against the first applicant up to and including the vacation of the litigation guardian order, namely 19 April 2023.[6]
[6] Interlocutory judgment at [137]
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 27 May 2024
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