Bed17 v Minister for Immigration and Border Protection
[2018] FCA 1098
•25 July 2018
FEDERAL COURT OF AUSTRALIA
BED17 v Minister for Immigration and Border Protection [2018] FCA 1098
Appeal from: BED17 v Minister for Immigration and Border Protection (No 2) [2017] FCCA 3021 File number: NSD 2119 of 2017 Judge: FLICK J Date of judgment: 25 July 2018 Catchwords: MIGRATION – Safe Haven Enterprise visas – fast track reviewable decision – appeal from decision of Federal Circuit Court to dismiss application for review of decision of the Immigration Assessment Authority – whether grounds of appeal impermissibly challenge factual findings of the Immigration Assessment Authority – whether reasons of the Immigration Assessment Authority expose readily apparent legal error Legislation: Migration Act1958 (Cth) Pt 7AA, ss 36, 473DA, 473DC, 473DD Cases cited: BED17 v Minister for Immigration and Border Protection (No 2) [2017] FCCA 3021
Khan v Minister for Immigration and Ethnic Affairs (unreported, FCA, Gummow J, 11 December 1987)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, (2005) 147 FCR 51
Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141, (2013) 229 FCR 290
Williams v Minister for the Environment and Heritage [2003] FCA 535, (2003) 74 ALD 124
Date of hearing: 25 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 2119 of 2017 BETWEEN: BED17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
25 JULY 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The Appellant in the present proceeding was born in Sri Lanka in September 1971. He arrived in Australia in August 2012 as an unauthorised maritime arrival.
In February 2016, he applied for a Safe Haven Enterprise (subclass 790) visa, that being a class of Protection visa. A delegate of the Minister for Immigration and Border Protection refused that application in September 2016. The delegate concluded that he did not satisfy the criteria under s 36(2)(a) or s 36(2)(aa) of the Migration Act1958 (Cth) (the “Migration Act”).
The application was then referred to the Immigration Assessment Authority (the “Authority”) for review. The review by the Authority was a “fast track review” to which Pt 7AA of the Migration Act applied. For the purposes of that review, the Appellant sent to the Authority a letter for its consideration.
In February 2017, the Authority communicated to the now-Appellant its decision to affirm the decision under review.
In March 2017, the Appellant sought review of the Authority’s decision by the Federal Circuit Court of Australia. That Court dismissed the application: BED17 v Minister for Immigration and Border Protection (No 2) [2017] FCCA 3021.
A Notice of Appeal from the decision of the Federal Circuit Court was then filed in this Court in December 2017. The First Respondent, being the Minister for Immigration and Border Protection, filed a Notice of Contention in January 2018.
The Appellant appeared before this Court in person. He had the assistance of an interpreter in advancing such submissions as he saw fit in support of his case. The Respondent Minister was represented by Counsel.
The appeal is to be dismissed with costs. It is unnecessary to resolve the Notice of Contention.
The Grounds of Appeal
The Grounds of Appeal are set forth in the Notice of Appeal as follows (without alteration):
Grounds of appeal
The Federal Circuit court failed to find, in respect of the IAA (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application.
The Immigration Assessing Authority has committed a jurisdictional error in my case as it declined to exercise jurisdiction as the factual precedent for its jurisdiction does exist.
My ground: Jurisdictional error
Particulars of my grounds:
I fear returning to Sri Lanka because I am at risk of harm from the Sri Lankan Navy and Sinhalese fishermen who previously suspected that I was involved with the LTTE. I am a Tamil fisherman who previously assisted the LTTE including transporting wounded injured cadres and Sri Lankan authorities continue to target those who had links to the LTTE.
There is evidence and country information on Sri Lanka before the IAA to substantiate that a Tamil in my similar circumstances is still risk of serious harm at the hands of Sri Lankan authorities but the IAA has declined to exercise its jurisdiction on central refugee claims. In addition to the above grounds, I still rely on the grounds and the particulars for the judicial review with the Federal Court of Australia.
I have no lawyer to represent me in this court as I am unemployed and I have no money to pay for legal representation.
A challenge to the facts & the absence of error
As particularised, the Ground of Appeal focussed upon three claims made by the Appellant as to why he feared harm, namely:
·the “risk of harm from the Sri Lankan Navy”;
·the risk of harm from “Sinhalese fishermen who previously suspected that I was involved with the LTTE”; and
·a claim that there is “evidence and country information on Sri Lanka before the IAA to substantiate that a Tamil in my similar circumstances is still [at] risk of serious harm at the hands of Sri Lankan authorities but the IAA has declined to exercise its jurisdiction on central refugee claims”.
These three claims mirror the grounds relied upon by the Appellant before the Federal Circuit Court.
There are two fundamental difficulties confronting the Appellant, namely:
·the fact that the arguments sought to be advanced before this Court (and before the Federal Circuit Court) were and remain impermissible challenges to the factual findings made by the Authority; and
·an independent review of the reasons for decision of the Authority exposes no readily apparent legal error which would result in the Authority’s decision being quashed.
Most importantly, there is no appellable error exposed in the reasons of the Federal Circuit Court Judge.
As to the first of the claims relied upon, namely the risk of harm from the Sri Lankan Navy, the Authority at para [6] of its reasons summarised the claims relied upon by the Appellant and identified the Sri Lankan Navy by the acronym “SLN”. The Authority addressed this claim specifically at paras [43] and [44] of its reasons, where it concluded as follows:
43.Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of serious harm for reason of any real or imputed LTTE links or political opinion, now or in the reasonably foreseeable future, for a number of reasons. … Secondly, the applicant’s detentions by the SLN in 2007 and by the SLA and SLN in 2009 were part of round ups and he was never individually, specifically targeted by the Sri Lanka authorities for any suspected LTTE links or otherwise. …
44.I am satisfied that the applicant will not face a real chance of serious harm from the Sri Lankan authorities as a Tamil and Tamil fisherman from Trincomalee, due to any links to the LTTE or for any other reason, if retur[n]ed to Sri Lanka, now or in the reasonably foreseeable future.
As to the second of the claims relied upon by the Appellant, namely the risk of harm from Sinhalese fishermen, the Authority addressed this risk at various parts of its reasons for decision. Those reasons summarise as follows what was “put to” the Appellant by the delegate:
24.The delegate put to the applicant that the attack against him in 2003 by the four Sinhalese men wasn’t credible as the men and/or the authorities took no action afterwards. The applicant mentioned for the first time that he was assaulted by one of the four Sinhalese men while returning from a wedding; that he complained about the attack through the Tamil Fisherman’s society; that he spent a year just going straight to his village after fishing and avoiding areas where the four men went; and the four Sinhalese men attacked the son of a local MP.
The Authority returned to this issue and made the following findings rejecting the claims made:
26.When I consider overall the not insignificant inconsistencies, changes and implausibility in his evidence in his written claims and at the SHEV interview, I do not find the applicant to be a credible witness in relation to these claims and reject them as exaggerated, embellished and fabricated in order to boost his protection claims. I do not accept that the applicant transported wounded LTTE cadres in 2003; that the four Sinhalese men tried to attack the applicant in 2003; or that any of the applicant’s claims about the four Sinhalese men are true. I do not accept that the applicant was released on bail at any time; that he was required to report to the police on a monthly basis; that there is a warrant for his arrest for leaving Sri Lanka while on bail; or that the applicant was in hiding for a year after his 2009 arrest and subsequently moved to Batticaloa and lived in a shed.
As to the third of the claims relied upon, namely the failure to address country information, the Authority canvassed the information in considerable detail, including the following:
34.DFAT assesses that monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities, if it occurs.
…
36.DFAT acknowledges that there is a moderate level of societal discrimination between ethnic groups resulting largely from the war. However, the report does not identify the affected ethnic groups or the nature of this discrimination. On my findings, the applicant has not been subject to any harm in the form of societal discrimination, including by the four Sinhalese men. The applicant was able to live for long periods in two different villages in Trincomalee, earn a living as a fisherman and worked in partnership with Sinhalese fishermen while he was in Sri Lanka. The country information discussed above indicates monitoring in the north and east has significantly decreased, there has been significant positive developments for Tamils in the country’s politics and the situation has generally improved.
37.I find that there is not a real chance the applicant would, as a Tamil and Tamil fisherman from the east, face official or societal discrimination amounting to serious harm upon his return to Sri Lanka, now or in the foreseeable future.
(Footnotes omitted.)
The reasons of the Authority are to be read in a common-sense and practical manner (cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ) and not with an eye attuned to the detection of error where none truly exists (cf. Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22], (2013) 229 FCR 290 at 297 to 298 per Flick J, Katzmann and Wigney JJ agreeing). And it is also a course fraught with danger to seek to identify particular paragraphs of reasons for decision as necessarily addressing discrete issues in an exhaustive manner where in reality the reasons are to be read as a whole and where some paragraphs deal with a myriad of issues.
Read in such a manner, it is not considered that any argument is tenable that suggests that the Authority did not address and resolve the claims made by the Appellant. Each of the issues was in fact addressed and the evidence identified upon which those findings were made. The manner in which the Authority resolved these factual claims made by the now-Appellant was a matter for it – provided, of course, that “proper, genuine and realistic” consideration was given to each of the claims made: Khan v Minister for Immigration and Ethnic Affairs (unreported, FCA, Gummow J, 11 December 1987). See also: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], (2003) 74 ALD 124 at 130 per Wilcox J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [212], (2005) 147 FCR 51 at 92 to 93 per Madgwick J (Conti J agreeing). The care and detail with which each of the claims was addressed by the Authority negates any suggestion that any of the claims were not properly considered.
No appellable error has been made out in respect to the primary Judge’s rejection of the same arguments. The primary Judge was correct in rejecting much the same arguments as were relied upon on appeal.
The sole Ground of Appeal is thus rejected.
The absence of error on the part of the Authority
The second fundamental difficulty confronting the Appellant is that there is no other readily apparent legal error on the part of the Authority.
The process whereby the Authority came to make its decision was preceded by the Appellant being given:
·a copy of the delegate’s decision;
·by the Authority, notification of the delegate’s decision being referred to it for review, together with advice as to “[w]hat you need to know about the Immigration Assessment Authority” and a copy the “Practice Direction for Applicants, Representatives and Authorised Recipients”.
It was presumably in response to this material that the Appellant sent to the Authority his September 2016 letter. Thereafter, the Appellant was sent:
·a notification of the Authority’s decision, together with a copy of the Authority’s decision and reasons for decision.
There is no self-evident departure from the review process set forth in Div 3 of Pt 7AA, that Division setting forth what is “an exhaustive statement of the requirements of the natural justice hearing rule” (s 473DA(1)). There was no self-evident departure from the constraints imposed by ss 473DC or 473DD or error in the application of s 473DD. That was, in part, the argument sought to be raised by the Respondent Minister’s Notice of Contention.
In reviewing the delegate’s decision, the Authority proceeded in an unexceptional manner.
CONCLUSIONS
No appellable error has been exposed in the reasons of the primary Judge.
The appeal is thus to be dismissed. There is no reason why costs should not follow the event.
An application made by the Appellant to adduce additional evidence on appeal was rejected. The evidence sought to be relied upon was a newspaper article written in Tamil. No translation was provided. No explanation was given as to why this article was not provided to either the delegate, the Authority or the Federal Circuit Court. In such circumstances, it is no part of the function of this Court on appeal to admit evidence which is presumably intended to undermine the findings of fact made by the Authority.
THE ORDERS OF THE COURT ARE:
1.The appeal is dismissed.
2.The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 25 July 2018
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