BCO15 v Minister for Immigration and Border Protection
[2016] FCA 151
•22 February 2016
FEDERAL COURT OF AUSTRALIA
BCO15 v Minister for Immigration and Border Protection [2016] FCA 151
Appeal from: BCO15 v Minister for Immigration and Border Protection [2015] FCCA 2613 File number: NSD 1218 of 2015 Judge: LOGAN J Date of judgment: 22 February 2016 Catchwords: MIGRATION – Refugee Review Tribunal (former) – Protection (Class XA) visa application – Migration Act 1958 (Cth) – where Federal Circuit Court erred by failing to find jurisdictional error – whether Tribunal had addressed asylum claim integers and basis of apprehended fear, as well as consequences of appellant’s return to Sri Lanka – no jurisdictional error – rational and logical reasons given – appeal dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 applied
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 cited
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
Date of hearing: 22 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Respondents: Ms R Graycar Solicitor for the Respondents: Clayton Utz Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter ORDERS
NSD 1218 of 2015 BETWEEN: BCO15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
22 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs which, inclusive of outlays, are fixed in the amount of $7,925.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The appellant is a citizen of Sri Lanka. He came to Australia by sea and without prior authorisation on 18 July 2012. On 24 December 2012, he applied for that class of visa under the Migration Act 1958 (Cth) known as a Protection (Class XA) visa. On 20 January 2014, a delegate of the Minister for Immigration and Border Protection, who is the first respondent to this appeal, refused that application. The appellant then sought the review on the merits of the Minister’s delegate’s refusal decision by a tribunal known as the Refugee Review Tribunal (Tribunal). On 29 May 2015, for reasons which it gave in writing that day, the Tribunal decided to affirm the refusal decision made by the Minister’s delegate.
The appellant then applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. In the interval between when the Tribunal gave its decision in May 2015 and when the Federal Circuit Court heard and determined the judicial review application on 23 September 2015, the role of the Tribunal was, as a result of amendment made to the Act, assumed by the Administrative Appeals Tribunal. Accordingly, apart from the Minister, the second-named respondent both to the judicial review application and this appeal has been named as the Administrative Appeals Tribunal. Appropriately, that Tribunal took no active part in the proceedings either on the judicial review application or this appeal.
On 23 September 2015, for reasons delivered orally that day, the Federal Circuit Court dismissed the judicial review application. This appeal comes to the Court from that judgment of dismissal made by the Federal Circuit Court.
There are two grounds of appeal:
(1)The Federal Circuit Court judge failed to hold that the second respondent erred in law, with the error being a jurisdictional error, in that it failed to assess a future threat to the appellant;
(2)The Federal Circuit Court failed to hold that the second respondent erred in law (p 263 of the Appeal Book), the error being a jurisdictional error, in that the second respondent failed to consider the LTTE connections as described by the appellant in the hearing before the Federal Circuit Court.
The reasons of the learned Federal Circuit Court judge are, with respect, compressed. That said, they address the essence of the grounds of review before that Court. They must also be read in conjunction with the extensive reference made by the learned Federal Circuit Court judge to the reasons given by the Tribunal.
In essence, his Honour concluded that the claim for asylum made by the appellant had been addressed and that the factual merits of those claims had been the subject of adverse credibility findings which were reasonably open to the Tribunal (see paras 19 and 20 of the judgment).
As I observed in the course of submissions this morning to the appellant, I do not consider either of the grounds of appeal to be meaningless. The first ground of appeal might be regarded as addressing either the persecution which the appellant alleged he feared he would face on return, or the alternative of a complementary protection based visa entitlement, having been raised, but not considered. The second of the appeal grounds could be regarded as alleging an error of the kind found by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. By that, I mean it could be regarded as a ground which alleged that the Federal Circuit Court ought to have found that the integers, as they are called, of the claim had not been addressed.
Understanding each of the grounds of appeal and the conclusion reached by the Federal Circuit Court requires the identification of the basis of the asylum claim put forward by the appellant. That is accurately stated by the Tribunal at para 7 of the Tribunal’s reasons. The Tribunal there states materially (p 206):
[h]is main claims related to harm feared as a result of his time spent in India and subsequent treatment in Sri Lanka as a former refugee from India; targeting by the authorities, Karuna Group and greasemen upon return to Sri Lanka from India; and later, he claimed to fear harm due to his relationship to, and time spent with, a cousin involved with the LTTE, as well as fears relating to his illegal departure from Sri Lanka and his current travel to Australia, and his return to Trincomalee.
The Tribunal made particular findings adverse to the appellant in relation to the account which he gave in support of the claim as detailed. The Tribunal also reached a view that material presented to it on behalf of the appellant via his representative, the Refugee Advice and Casework Service, from a person said to be the appellant’s cousin was not to be accepted as, indeed, coming from such a person.
I have no doubt, having heard the appellant’s submissions this morning, that he genuinely and emphatically disagrees with the adverse credibility findings made by the Tribunal both concerning him personally and, as well, in rejecting the material said to come from his cousin. As to the credibility findings made by the Tribunal after having heard the appellant’s oral evidence, it is necessary to recall that such findings are, par excellence, for the Tribunal to make: see Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405.
That apart, it is for the person who wishes a particular outcome in a review proceeding to put forward such material as he or she can to support such an outcome. That is not to say that there is any formal onus of proof in the case of the present kind before the Tribunal; only to recognise that the primary function of the Tribunal is that of review, not inquiry of its own motion, that it must make its findings on the basis of some rationally probative material, and that it is in the interests of a person who seeks a favourable such finding to offer the Tribunal the best possible basis which he or she can put forward for such a finding.
This was a case where the Tribunal had before it sources of information other than that provided by the appellant. The Tribunal had generic country information concerning Sri Lanka provided via reports from the Australian Department of Foreign Affairs and Trade. It is also evident that the Tribunal had the benefit of information concerning Sri Lanka ultimately sourced from the United Nations High Commission for Refugees. Reading the Tribunal's reasons discloses a close engagement by the Tribunal with the appellant's own account, its consistencies or inconsistencies and the more generic sources of information to which I have referred. The Tribunal was not obliged to accept at face value the appellant's account of events. The credibility findings which the Tribunal made were, indeed, as the Federal Circuit Court judge concluded, reasonably open to the Tribunal. It is nothing to the point as to whether his Honour or I might have made such findings.
As to the material submitted via the appellant's representative, and said to have its origin in the appellant's cousin in London, the Tribunal chose, for reasons which are rational and logical, not to regard this material as originating from the appellant's cousin, or even to accept that there was such a person.
It was put on behalf of the Minister that it was relevant for the Tribunal to note that the material had been presented with the assistance of a professional representative. Reference in this regard was made to an observation of the Full Court in SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at 37. It was doubtless a factor which the Tribunal could, if it wished, take into account and give such weight as it thought fit, that material had originated with the assistance of a professional adviser. But, ultimately, whether or not the Tribunal chose to act on the material required a value judgment to be made about its credibility. Here, that value judgment has been explained by the Tribunal in its reasons in a way that is rational and logical for rejecting its source. Once again, I have no doubt from his submissions that the appellant emphatically disagrees with that rejection, but emphatic disagreement is not to be equated with absence of a rational or logical foundation for rejection.
As to the consequences for the appellant on his return to Sri Lanka if unsuccessful in his asylum claim, that position was the subject of detailed consideration by the Tribunal. The Tribunal concluded that a complementary protection claim, as this aspect has come to be called in such cases, was not made out. In part, that flowed from the Tribunal’s absence on satisfaction as a result of adverse credibility findings concerning the asylum claim basis. In the other part, it was based on country information concerning the position which prevailed in respect of the return to Sri Lanka of failed asylum seekers. The end result, though, was a conclusion which was indeed, as I apprehend the Federal Circuit Court judge also to have found, a reasonably open conclusion that there was no basis for a complementary protection visa.
The end result of the review process was an unhappy one for the appellant, but it is a necessary discipline, both in respect of the exercise of the original judicial review jurisdiction and this appellate jurisdiction, to appreciate that matters of adjudication on the merits are, if lawfully undertaken, for an administrative decision-maker, not a judicial officer in this class of case, for all of the reasons given by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
In short, then, and for the reasons just given, neither ground of appeal has merit. The appeal must accordingly be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 25 February 2016
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