FEDERAL COURT OF AUSTRALIA
BAZ15 v Minister for Immigration and Border Protection [2018] FCA 230
Appeal from: BAZ15 v Minister for Immigration and Border Protection [2016] FCCA 1929 File number: NSD 1352 of 2016 Judge: GRIFFITHS J Date of judgment: 6 March 2018 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether the primary judge erred in not finding that the Refugee Review Tribunal had breached s 425 of the Migration Act 1958 (Cth) by failing to give the appellant a reasonable opportunity to give evidence and present arguments about a claim that he sought to advance at the Tribunal hearing – appeal dismissed with costs Legislation: Migration Act 1958 (Cth), s 425 Cases cited: Abebe v Commonwealth [1999] HCA 14; 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZNTO v Minister for Immigration and Citizenship [2010] FCA 183; 114 ALD 129
SZTXE v Minister for Immigration and Border Protection [2015] FCA 493; 232 FCR 433
Date of hearing: 5 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: Mr L Karp Counsel for the First Respondent: Ms N Laing Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1352 of 2016 BETWEEN: BAZ15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
6 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
This appeal from a judgment of the Federal Circuit Court of Australia (FCCA) (see BAZ15 v Minister for Immigration and Border Protection [2016] FCCA 1929) raises a single ground of appeal. That ground is whether the FCCA erred in not finding that the Refugee Review Tribunal (now the Administrative Appeals Tribunal (Tribunal)) failed to comply with s 425 of the Migration Act 1958 (Cth) (the Act) by failing to give the appellant a reasonable opportunity to give evidence and present arguments about a claim that he sought to advance at the Tribunal hearing, namely that his cousin had recently been murdered.
Shortly before the hearing, the appellant abandoned ground 2 in his notice of appeal, which raised a claim of apprehended bias against the primary judge.
Summary of background facts and appellants claims for protection
The appellant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia in August 2012 as an unauthorised maritime arrival. He applied for a protection visa.…
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Details
- Case
- [2018] FCA 230
- Decision Date
CaseChat Overview and Summary
The Federal Circuit Court of Australia was asked to review a decision by the Refugee Review Tribunal, which had rejected an application for a protection visa by a Sri Lankan national, BAZ15. The appellant argued that the Tribunal had not provided him with a reasonable opportunity to give evidence and present arguments about a claim that he sought to raise at the Tribunal hearing. Specifically, he claimed that a cousin of his had recently been shot dead and that this incident was relevant to his fear of returning to Sri Lanka. The primary judge dismissed the appeal, and the appellant sought further review by the Full Court of the Federal Circuit Court.
The legal issue before the court was whether the primary judge had erred in not finding that the Tribunal had breached section 425 of the Migration Act 1958 by failing to give the appellant a reasonable opportunity to give evidence and present arguments about the claim concerning his cousin's death. The court considered whether the Tribunal had given the appellant a reasonable opportunity to present his case and whether the Tribunal's failure to do so had resulted in a miscarriage of justice.
The court found that the appellant had not been denied a reasonable opportunity to present his case. The appellant had been given the opportunity to present his case, and he had been able to raise the issue of his cousin's death during the hearing. The court noted that the appellant's migration agent had informed the Tribunal of the recent death of the cousin, but the appellant had chosen to proceed with the hearing despite being upset. The court also found that the Tribunal had directly addressed the appellant's claim concerning his cousin's death and had provided reasons for why it did not accept the claim. The court held that the Tribunal had not breached section 425 of the Migration Act, and the appeal was dismissed with costs.
The legal issue before the court was whether the primary judge had erred in not finding that the Tribunal had breached section 425 of the Migration Act 1958 by failing to give the appellant a reasonable opportunity to give evidence and present arguments about the claim concerning his cousin's death. The court considered whether the Tribunal had given the appellant a reasonable opportunity to present his case and whether the Tribunal's failure to do so had resulted in a miscarriage of justice.
The court found that the appellant had not been denied a reasonable opportunity to present his case. The appellant had been given the opportunity to present his case, and he had been able to raise the issue of his cousin's death during the hearing. The court noted that the appellant's migration agent had informed the Tribunal of the recent death of the cousin, but the appellant had chosen to proceed with the hearing despite being upset. The court also found that the Tribunal had directly addressed the appellant's claim concerning his cousin's death and had provided reasons for why it did not accept the claim. The court held that the Tribunal had not breached section 425 of the Migration Act, and the appeal was dismissed with costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Shortly before the hearing, the appellant abandoned ground 2 in his notice of appeal, which raised a claim of apprehended bias against the primary judge. Summary of background facts and appellants claims for protection The appellant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia in August 2012 as an unauthorised maritime arrival. He applied for a protection visa. The appellant said he was from the north of Sri Lanka and that, as a child, he lived in areas under LTTE control until 2008, when those areas then came under the control of the Sri Lankan Army (SLA). He said that he and his family moved around to avoid the fighting. He said that his older brother was shot and killed by the SLA in 1998. He said that in around 2001, he was detained and tortured by the SLA on suspicion of buying supplies for the LTTE. He said he moved to Dubai in 2002 and returned to Sri Lanka after 2002 when a cease fire was in force. The appellant said that after returning to Sri Lanka from Dubai, he had operated a business which hired out tractors, and that many civilians were killed before the end of the war, including the driver of one of his tractors and the driver’s child. He said that one of his tractors was stolen, apparently by persons associated with the SLA and that he was beaten when he complained. He said that a cousin who had been adopted by him had disappeared, and that he and his aunt complained to human rights organisations. He said that while searching for the missing cousin on 10 July 2012, he was stopped by the army and taken towards a camp. He said that he managed to escape in fear of his life. He further claimed that, because the SLA could not find him, they took one of his brothers and told the brother that he would be released only if the appellant surrendered himself. The brother was in fact released after three days, partly because of the family’s pleas and also because the SLA was concerned that the foreign organisation for which the brother worked would take action or report them. The appellant said that he suspected the SLA had killed his missing cousin and that they did not want this to be discovered, which was why the SLA were after him. He then left Sri Lanka. The appellant’s protection visa application was rejected by the delegate on 20 December 2013. He sought a review in the Tribunal. The Tribunal proceedings On the day of the Tribunal hearing, the appellant instructed his migration agent to inform the Tribunal that another cousin of his had recently been shot dead and that the funeral was being held in Sri Lanka that day. The migration agent stated that this matter could be explored more thoroughly during the course of the hearing, and that it had a direct bearing on the appellant’s case. Although the appellant was upset, his agent said that the appellant wanted the Tribunal hearing to proceed. A transcript of the Tribunal hearing was in evidence. At several points in the hearing the appellant attempted to raise the issue of his cousin's recent death. At 382 of the Appeal Book (AB) the following exchange occurred after the appellant gave evidence about being suspected of transporting goods for the LTTE;MR MILLAR: So they were trying to take action against you; what were they doing?INTERPRETER: When they came to Australia, it’s my cousin who was looking after my wife and children (indistinct) and today only, 2 o’clock in the afternoon, they are going to cremate the body.MR MILLAR: Could you just please answer my question. You said that because you had transported goods and someone's daughter in an LTTE area, the army thought you were supporting them and were trying to take action against you. I want to know what, therefore, were they doing?
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In its reasons for decision, the Tribunal directly addressed the appellant’s claim made just before the hearing concerning the recent death of his cousin. It is desirable to set out [47]-[51] of the Tribunal’s reasons for decision (footnote omitted):47.Just prior to the hearing the representative advised that the applicant had a cousin who had been shot dead (a few days before the hearing was held). In support of this claim a media article was submitted from a publication called the Tamil Diplomat naming a certain individual as a former member of TELO as having been shot dead by unidentified people. The representative submitted that the death of this cousin was a new claim in relation to the review even though no evidence was put forward as to how this related to the applicant’s fear of harm in Sri Lanka. 48.At the hearing, when questioned as to what difficulties he had with the Army before the occasion in July 2012 when he claims they tried to abduct him, the applicant mentioned transporting the daughter of an injured person through an area which used to be controlled by the LTTE and the Army threatening that he was involved with that group and taking action against him. When the Tribunal asked the applicant what that action was, he said that after he went to Australia his cousin was looking after his wife and children and he was to be cremated on the hearing day. When again asked what action was taken against him, the applicant then related his account about his tractors and the Army taking one of them. He said nothing further about yhis cousin and his relationship to the applicant’s protection claims. 49.Further in the hearing the Tribunal discussed country information with the applicant (set out further below), in particular, the profiles of those at risk of serious harm. When invited to comment on this, the applicant said that his cousin was shot dead on 3 March 2015 and was to be cremated on the same day as the hearing. Nothing further about this cousin was advanced by the applicant or the representative. After the hearing the representative, by letter dated 20 March 2015, submitted that the shooting of the cousin was relevant to the applicant’s fear of harm in Sri Lanka but said nothing more about that. The representative requested that if the member had concerns about the matter that these be put to the applicant. 50.Possibly the applicant is seeking to in some way link this person he describes as a cousin to the adverse interest he claims Sri Lankan authorities hold in him. The only evidence before the Tribunal about this is a media report that a person of a certain name was shot dead. The only source of evidence as to how this affects the applicant would be the applicant himself. He could easily have advanced claims about that at the Tribunal hearing including instructing his representative at the hearing about them if indeed there were any such claims. The difficulty for the applicant is that even if he did advance claims about this individual and how that posed a risk for him, for the reasons given above, the Tribunal would have disbelieved them. 51.That is because the Tribunal holds significant concerns about the applicant’s credibility which have led the Tribunal to find that he is not a witness of truth. Accordingly, because he has been so substantially discredited as a witness, the Tribunal could not believe evidence from the applicant that this person is in some way involved with (or that his shooting is evidence of) adverse interest held in the applicant by Sri Lankan authorities. Indeed, because the applicant is not a witness of truth, the Tribunal does not believe his evidence that the person referred to in the media article provided is even his cousin (and that he was looking after the applicant’s wife and children after the applicant left Sri Lanka as he had claimed). The FCCA’s reasons for judgment summarised
Ratio Decidendi
Legal Principle Established
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