Bco17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 90
•5 February 2020
FEDERAL COURT OF AUSTRALIA
BCO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 90
Appeal from: BCO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2242 File number: NSD 1633 of 2019 Judge: LEE J Date of judgment: 5 February 2020 Catchwords: MIGRATION – appeal from Federal Circuit Court – where notice of appeal not particularised – no discernible error in reasons of Immigration Assessment Authority – no error in decision of primary judge – appeal dismissed Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: BCO17 v Minister for Immigration [2019] FCCA 2242 Date of hearing: 5 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Ms C Saunders of MinterEllison Solicitor for the Second Respondent: The second respondent entered a submitting notice save as to costs. ORDERS
NSD 1633 of 2019 BETWEEN: BCO17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
5 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the Transcript)LEE J:
A INTRODUCTION
The appellant appeals orders made by the Federal Circuit Court dismissing an application for judicial review of a decision of the second respondent (Authority) dated 21 February 2017, in which the Authority affirmed a decision of a delegate of the first respondent (Delegate) not to grant the appellant a temporary protection visa.
There is no utility in setting out the narrative of the appellant’s claims, the detail of the Authority’s decision nor the nature of the proceeding before the primary judge. They are set out in the decision of the primary judge comprehensively and, from my review of the appeal book, accurately: BCO17 v Minister for Immigration [2019] FCCA 2242 at [2]-[20]. The notice of appeal is economical. The appeal ground is specified as follows: “I am appealing from the whole decision of the FCC Judge”.
In the absence of any particulars as to any error in the reasoning of the primary judge, I sought to elicit from the appellant, who appeared in person with the assistance of an interpreter, any matters which he said demonstrated error in what had occurred before the Federal Circuit Court or leading up to the proceeding in that Court. In response, the appellant identified four matters. They are as follows:
(1)That a prominent politician in Sri Lanka (Minister) (whose name is identified in the reasons of the Authority reproduced at AB211) continues to hold a position of power in the Sri Lankan Government and has caused and continues to cause problems for the appellant (first matter).
(2)A week prior to the hearing today, a meeting was held in Kilinochchi, in Sri Lanka, the details of which have reached the appellant through the medium of a friend who has shown him a newspaper report; that report conveyed the representation that a person described as the “second in rank” to the Minister said to an unidentified person that the appellant would be punished because of his past associations with the Liberation Tigers of Tamil Eelam (LTTE) (second matter).
(3)At the hearing before the Federal Circuit Court, the appellant was given insufficient time to put forward his case and an interpreter was furnished, who did not take the necessary time to explain matters to the appellant in the Tamil language, such as the submissions of the respondent (in contrast to the interpretation services that he has received during the course of this appeal) (third matter).
(4)A claim that there was an incident at a protest between police officers and the appellant’s mother (which was initially explained to me as police officers throwing stones at his mother, causing her to be injured and resulting in her bleeding), and that this incident was not taken into consideration because the relevant newspaper report in which the incident was reported was not translated (fourth matter).
Additionally, the appellant made some generalised submissions about his concerns about returning to Sri Lanka, which are not necessary to deal with in further detail. It is convenient to deal with each of these four identified matters in turn.
B FIRST MATTER
As I explained to the appellant, the issue is identifying appellable error in the decision below, including whether or not his Honour ought to have found that the Authority’s decision was infected by jurisdictional error. As it happens, what might be described as the broader issue of conflict between the Minister and the appellant did receive attention before both the Delegate and the Authority.
It is sufficient for present purposes to note that the Authority referred (at [6]) to a political gathering attended by the Minister and the appellant. During the course of this meeting, in response to a question from the appellant, the Minister indicated that if the appellant obtained sufficient signatures on a petition the government would consider allowing persons to resettle in certain areas of Sri Lanka including the home village of the appellant and his wife.
In so far as these communications are concerned, the Authority accepted the appellant’s claim, however, because of what was described as a combination of omissions in the appellant’s other claims, and an incongruity between his claimed actions and the level of official interest they are said to have generated, the Authority concluded that it did not accept the claims regarding the events that followed the petition. To the extent that this point was raised below, his Honour referred to what was described as a “key finding” of the Authority: that it had accepted the appellant was involved in collecting signatures for a petition: see [11].
His Honour noted that in the light of the Authority’s other factual findings and country information, it did not accept that the appellant would face harm on account of his role in petitioning the land resettlement issues, or that the ongoing impact of the displacement (including his inability to return to his village) threatened his capacity to subsist or otherwise amounted to serious harm: at [12]. It is evident the case below was also conducted by reference to a number of what his Honour described as “bare assertions which lack sufficient particularity to be meaningful”: at [22]. There is no reason to doubt the conclusion of his Honour expressed at [23] that, at least in so far as this aspect of the case is concerned, the Authority considered the claims made, applied the correct test and made cogent findings that were open to it. No error is disclosed in this regard.
C SECOND MATTER
The second issue suffers from the inevitable difficulty that what occurred last week is not material to the question to be determined on appeal. Even taking at face value, in the absence of any evidence, the claim that there is a report which conveys the representation described above at [3(2)], this is not a basis upon which relief can be granted.
D THIRD MATTER
There is similarly no basis for the finding that the appellant was somehow denied procedural fairness in that he was denied sufficient time to put forward his case. As his Honour records at [19]-[20]:
The [appellant] sought an adjournment of the trial so that he could obtain legal advice with the benefit of the court book and the [respondent’s] written submissions. Although the [appellant] has had in excess of two years to prepare for the hearing of this matter and could have sought advice in relation to the Authority decision over that period, I granted him the opportunity to make a post hearing submission within 21 days. It was apparent that the [appellant] was unable to make any oral submissions on any legal issues and he sought a five month adjournment in order to obtain legal advice and make submissions. That period, in my view, would have been excessive and I consider that the period of 21 days afforded him was adequate.
Nothing further was filed.
It appears as though the appellant was not in a position, at the time of the hearing, to make detailed submissions given his request for an adjournment. The pragmatic approach taken by the primary judge, which allowed the appellant to seek further advice, obtain any clarification, and put on a post-hearing submission, was one that was not only open to him but seems, with respect, to have been sensible. It is plain that in those circumstances, even if the actual duration of the hearing was short, a submission as to denial of procedural fairness cannot be made out. To the extent that this submission could be taken as a complaint against the primary judge’s decision not to allow the appellant five months to put on submissions, there is no error in his Honour concluding that 21 days was fair in the circumstances. Further, to the extent there were difficulties with the translation services on the day of the hearing, his Honour’s approach would appear to have cured any such shortcomings.
D FOURTH MATTER
As early as the interview before the Delegate, the appellant provided a newspaper article dated 30 April 2013 (Article) (an untranslated version of which appears at AB205) allegedly depicting a protest which the appellant claims was led by his mother for the resettlement of people in Palaly and Myliddy. The Delegate recorded that the appellant stated his mother was injured during the protest, however, due to her age, the authorities did not arrest her.
When the appellant was asked by the Delegate what happened to the other participants, he apparently replied that he was not aware what happened to them: see AB175. The Authority dealt with the issue in this way at [18]:
I have accepted that the [appellant] did petition the government for the return of his land, and I also accept the [appellant’s] evidence that the issue over the land is ongoing. The [appellant] submitted a newspaper article in Tamil which is dated April 2013. While I am unable to read the article, I accept his claim that it shows his mother, and that she was involved in a protest in 2013 during which she was hurt.
As is clear from this extract, contrary to the appellant’s submission, the Authority did consider the Article, and indeed, accepted his claims as to its contents. However, in considering the relevance of the claim, at [22] the Authority came to the conclusion that his mother’s experience at the protest was an isolated incident given that it occurred in 2013 and to the appellant’s knowledge, she had not received any adverse attention following the protest. Plainly, the Authority took the claim regarding the appellant’s mother into consideration as part of a comprehensive assessment of all claims made, and in doing so, as is evident from a review of the Authority’s reasons, accepted some of the appellant’s claims but rejected others on the basis of adverse credibility findings and a lack of evidence.
E CONCLUSION
At the end of the day, in the light of its factual findings, the Authority did not accept that the appellant would face harm on account of his (or his mother’s) experiences, or that the ongoing impact of the displacement and his inability to return to his village threatened his capacity to subsist or otherwise amounted to serious harm. Further, having regard to the country information and the appellant’s profile, the Authority did not accept that the appellant would face harm by reason of his Tamil ethnicity, his imputed political opinion or his perceived links to the LTTE.
Although the primary judge’s reasons were brief and they involved a discussion of the cumulative requirements of s 473DD of the Migration Act 1958 (Cth) (which did not seem to me to be relevant to the case advanced by the appellant below), the primary judge was correct to reject the five grounds of the application for judicial review, and I can otherwise discern no jurisdictional error in what occurred before the Authority. Accordingly, the appeal must be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 7 February 2020
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