BCJ16 v Minister for Immigration and Border Protection

[2018] FCA 658

FEDERAL COURT OF AUSTRALIA

BCJ16 v Minister for Immigration and Border Protection [2018] FCA 658

Appeal from:

BCJ16 v Minister for Immigration & Border Protection [2017] FCCA 2943

File number:

WAD 637 of 2017

Judge:

COLVIN J

Date of judgment:

10 May 2018

Legislation:

Migration Act 1958 (Cth) ss 473DD, 476A, Part 7AA

Cases cited:

BCJ16 v Minister for Immigration & Border Protection [2017] FCCA 2943

Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51

Date of hearing:

9 May 2018

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

13

Counsel for the Appellant:

The appellant appeared in person, assisted by an interpreter

Counsel for the Respondents:

Ms SJ Oliver

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

WAD 637 of 2017

BETWEEN:

BCJ16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	10 MAY 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant do pay the first respondent's costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1. The appellant seeks a safe haven enterprise visa.  His application was refused by a delegate of the Minister.  The Immigration Assessment Authority affirmed the decision not to grant the visa.  An application for review to the Federal Circuit Court was refused.  The appellant now brings an appeal in this Court.  The sole ground is expressed as 'jurisdictional error caused by failing to exercise its proper jurisdiction by not following the law/fax presented evidence'.

2. The decision of the Authority was a 'migration decision' for the purposes of the Migration Act 1958 (Cth). Therefore, in the Federal Circuit Court the appellant had to demonstrate jurisdictional error: s 476A. The grounds advanced in that Court were:

   1Jurisdictional error

   2Bias based on conscious or unconscious prejudice by ignoring relevant material

   3Identifying a wrong issue on a wrong question

3. In addition the Federal Circuit Court judge said that the then-applicant (now appellant) was given an opportunity orally to state his complaint about the decision of the Authority, but did not articulate any complaint which might seemingly give rise to jurisdictional error:  BCJ16 v Minister for Immigration & Border Protection [2017] FCCA 2943 at [8]. His Honour also considered the decision and concluded that there was nothing illogical or irrational in the Authority's reasoning and that there was an evident and intelligible justification for the conclusions in its decision: at [15]. The reasoning was also reviewed in the context of the unparticularised allegation of bias. This was an indulgence to the appellant because such grounds would not usually be entertained in the absence of particulars. Further, it is a rare case where a court will find bias simply on the basis of the reasons of a decision‑maker: Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [18]. His Honour concluded, after considering the reasons of the Authority, that there was no suggestion of bias or that relevant material was ignored: at [19]. No ‘wrong issue on a wrong question’ was identified.

4. Before me, the appellant confirmed that he was given an opportunity to state his complaint to the Federal Circuit Court judge.  He said that the Federal Circuit Court judge had asked similar questions to those raised by this Court and he gave the same answers.

5. In oral submissions he raised two matters.

6. First, he said there had been many instances since 2012 where there had been problems for people who had gone back to Sri Lanka.  He said that if it was safe to go back he would have ‘gone long ago’.  He described some instances of problems.

7. The nature of the process to be conducted by the Authority under Part 7AA of the Migration Act is such that the review is conducted on the papers and the Authority must not consider any new information unless there are exceptional circumstances: s 473DD. In this case, no further information was obtained or received by the Authority. No claim was made that evidence should have been received. There was no suggestion that there had been any attempt to persuade the Authority to consider new information. In those circumstances, these additional matters are not relevant to the appeal.

8. Second, the appellant referred to matters that had led the delegate of the Minister to refuse his application as initially made.  He sought to explain how certain matters that were not accepted by the delegate should have been accepted.  However, as I will explain, the same approach was not adopted by the Immigration Assessment Authority Reviewer.

9. I have considered the decision and reasons by the Reviewer.  The Reviewer accepted that the applicant, his father, mother and sisters had been detained in army camps in the period from 2009 to 2011.  The Reviewer also accepted that the appellant’s father had a limited involvement with the Liberation Tigers of Tamil (or LTTE).  She found that the fact that the appellant's father had been released after interrogation and had not been sent to a rehabilitation centre indicated that the authorities, although aware of his previous LTTE involvement, had not considered his LTTE history sufficient to necessitate arrest and rehabilitation.  The Reviewer found that the appellant had twice been taken into an army camp in place of his father, but this occurred in 2011 in the context of post-war monitoring.  He stated he was subjected to verbal harassment and abuse but did not claim to have been questioned, interrogated or otherwise mistreated.  In those circumstances, the Reviewer found that he was not detained because he was personally of interest to the authorities.  She found that the appellant was not of interest to the authorities on account of his father's previous LTTE involvement or any other reason and he has not become of interest to them since departing.

10. The Reviewer accepted the evidence of a sexual assault of the appellant by an LTTE member.  However, it was noted that this was not claimed to be a reason for leaving Sri Lanka nor a reason that the appellant feared harm on his return.  No complaint as to these matters was raised before the Federal Circuit Court.

11. The Reviewer dealt with more general claims based upon the appellant being a young educated Tamil and his illegal departure.  It assessed information relating to the situation in Sri Lanka for Tamils and returnees and made a complementary protection assessment.

12. I am unable to identify any legal unreasonableness in the reasoning by the Reviewer that the Federal Circuit Court failed to find despite the very general grounds of review.

13. No error has been demonstrated in the reasoning of the Federal Circuit Court and the appeal must be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Associate:        

Dated:        10 May 2018