JFJF v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FCAFC 69

FEDERAL COURT OF AUSTRALIA

JFJF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 69  

Appeal from:

JFJF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1401

File number:

NSD 16 of 2023

Judgment of:

PERRAM, MEAGHER AND HESPE JJ

Date of judgment:

10 May 2023

Catchwords:

MIGRATION – appeal from decision of Federal Court of Australia dismissing judicial review application – where Administrative Appeals Tribunal (‘Tribunal’) affirmed decision of Minister’s delegate to refuse to grant protection visa – where Tribunal found that Appellant is a danger to the Australian community – whether primary judge erred in failing to find that Tribunal fell into jurisdictional error by unreasonably or irrationally giving psychologist’s report limited weight – where application for an extension of time unnecessary

Legislation:

Migration Act 1958 (Cth) ss 36(1A)(a), 36(1C)(b)

Federal Court Rules 2011 (Cth) rr 2.25(1), (3)

Cases cited:

JFJF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1401

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

13

Date of last submissions:

1 May 2023 (Appellant)
4 May 2023 (First Respondent)

Date of hearing:

10 May 2023

Counsel for the Appellant:

Mr P Berg

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 16 of 2023

BETWEEN:

JFJF

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	PERRAM, MEAGHER AND HESPE JJ
DATE OF ORDER:	10 MAY 2023

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed on the basis that it is not necessary.

2.The Appellant’s draft notice of appeal be treated as a notice of appeal taken to have been filed on 22 December 2022 disclosing the single ground ‘the trial judge erred in concluding that the Tribunal’s conclusion about Mr Cinar’s assessment of the risk posed by the Appellant was not irrational or unreasonable’.

3.The appeal be dismissed.

4.The Appellant pay the First Respondent’s costs of the appeal as taxed, agreed or assessed.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

PERRAM J:

1. The question in this appeal concerns the trial judge’s conclusion that it was not unreasonable for the Administrative Appeals Tribunal (‘Tribunal’) to discount the forensic value of a report by a psychologist, Mr Cinar: JFJF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1401 at [67] (‘PJ’). The report of Mr Cinar was based on psychometric testing and his interview with the Appellant.

2. The relevance of Mr Cinar’s report was to demonstrate that the Appellant was not a danger to the Australian community.  That question was relevant because a delegate of the Minister had refused to grant the Appellant a protection visa on the basis that he was such a danger and that he had been convicted of a particularly serious crime.  Satisfaction of both of those matters required the rejection of the protection visa application: Migration Act 1958 (Cth) ss 36(1A)(a) and 36(1C)(b).

3. It is not in dispute that the Appellant has been convicted of aggravated robbery, threatening injury to a person, contravening a prohibition or restriction in a domestic apprehended violence order, two counts of assault occasioning actual bodily harm and shoplifting.  The only issue therefore was whether the delegate was satisfied that he was a danger to the Australian community.  The delegate and thereafter the Tribunal concluded that he was.

4. Part of the Tribunal’s process of reasoning to this conclusion was that the Appellant was not a reliable witness.  This it did on the basis of inconsistencies in the evidence he gave before the Tribunal about why he was seeking refuge from South Sudan (of which he is a citizen).  A central part of this evidence was his contention that he had been abducted when he was young and had become a child soldier, that he had killed people as a child soldier and that he had been subsequently reunited with his mother in a refugee camp in Kenya.  The Tribunal concluded that this evidence was fabricated.

5. Mr Cinar’s report assessed the Appellant as presenting a low-moderate risk of offending. The Tribunal concluded that the tests administered by Mr Cinar to reach this conclusion ‘relied to some extent on the Applicant’s self-report’ which the Tribunal described as ‘demonstrably unreliable’: see the Tribunal’s reasons at [100] (‘TR’). Overall it concluded that it ‘did not have confidence in Mr Cinar’s conclusions because they are not based on reliable information’: TR [100]. For a variety of reasons, including this aspect of Mr Cinar’s report, the Tribunal concluded the Appellant was a danger to the Australian community.

6. The trial judge rejected the Appellant’s contention that it was irrational for the Tribunal to reason in this fashion.  On the hearing of the appeal, the Appellant contended that the irrationality of the Tribunal’s conclusion lay in its assumption that the fact that the Appellant gave unreliable evidence to the Tribunal entailed that he had given an unreliable account to Mr Cinar.

7. I would accept that it is logically possible that the Appellant gave a reliable account to Mr Cinar whilst giving an unreliable account to the Tribunal.  However, it is also logically possible that the Tribunal’s view is correct.  Logic therefore does not provide an answer to the problem.  Rather, the question in an irrationality or unreasonableness challenge is whether there was an evident and intelligible basis for the conclusion reached by the Tribunal.  This was the standard applied by the trial judge (PJ [67], [71]) and it is not now suggested on appeal that her Honour erred in applying that standard.

8. The only question therefore is whether this Court thinks that conclusion is wrong as a matter of law.  For my part, I do not.  Mr Cinar’s conclusions about the risk of the Appellant re-offending were based, in part, on his interview with the Appellant.  To reason that the Appellant’s account to Mr Cinar was unreliable because his evidence to the Tribunal was not reliable discloses a basis of reasoning which is, at once, evident and, more importantly, intelligible.  The most that can be said for the Appellant is that he has established that the Tribunal did not have to reason this way.  However, that is not enough.

9. The appeal was commenced by the Appellant lodging an application for an extension of time, accompanied by a draft notice of appeal on 22 December 2022.  These were taken under the Court’s rules to have been filed on that day: Federal Court Rules 2011 (Cth) rr 2.25(1) and (3). The trial judge’s orders were dated 24 November 2022. The application was therefore filed within the time required for the filing of an appeal being 28 days. As such, the application for an extension of time was not necessary. The argument pursued by pro bono counsel differed from the grounds disclosed in the draft notice of appeal. In the circumstances, it appears appropriate to proceed on the basis that the appeal was properly filed in time and that the single ground of appeal is that the trial judge erred in concluding that the Tribunal’s conclusion about Mr Cinar’s assessment of the risk posed by the Appellant was not irrational or unreasonable.

10. Because the application for an extension of time is unnecessary, it should be dismissed. 

11. I would therefore propose the following orders:

    (1)The application for an extension of time be dismissed on the basis that it is not necessary.

    (2)The Appellant’s draft notice of appeal be treated as a notice of appeal taken to have been filed on 22 December 2022 disclosing the single ground ‘the trial judge erred in concluding that the Tribunal’s conclusion about Mr Cinar’s assessment of the risk posed by the Appellant was not irrational or unreasonable’.

    (3)The appeal be dismissed.

    (4)The Appellant pay the First Respondent’s costs of the appeal as taxed, agreed or assessed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated:       11 May 2023

REASONS FOR JUDGMENT

MEAGHER J:

1. I agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Meagher.

Associate:

Dated:       11 May 2023

REASONS FOR JUDGMENT

HESPE J:

1. I agree with the reasons and orders of Justice Perram.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Hespe.

Associate:

Dated:       11 May 2023