BEL16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BEL16 v Minister for Home Affairs [2019] FCA 1678

Appeal from: BEL16 v Minister for Immigration & Anor [2019] FCCA 223
File number: VID 149 of 2019
Judge: BEACH J
Date of judgment: 11 October 2019
Catchwords: MIGRATION – application for protection visa – irrational or illogical reasoning – unreasonableness – incorrect foundation for lack of credibility finding – constructive failure to exercise jurisdiction – incorrect treatment of police report – appeal allowed
Legislation: Migration Act 1958 (Cth) ss 36 and 65
Cases cited:

AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227

DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Date of hearing: 9 October 2019
Date of last submissions: 10 October 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 123
Counsel for the Appellant: Mr JE Hartley
Solicitor for the First Respondent: Ms I Ward of Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

VID 149 of 2019
BETWEEN:

BEL16

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BEACH J

DATE OF ORDER:

11 OCTOBER 2019

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Order 1 of the orders made by the Federal Circuit Court on 5 February 2019 be set aside and in lieu thereof it be ordered that the decision of the second respondent made on 21 April 2016 be quashed and the matter be remitted to the second respondent for hearing and determination according to law.

3.Order 2 of such orders be set aside and in lieu thereof it be ordered that the first respondent pay the appellant’s costs of the proceedings in the Federal Circuit Court.

4.The first respondent pay the appellant’s costs of and incidental to the appeal in this Court to be taxed in default of agreement.

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


REASONS FOR JUDGMENT

BEACH J:

  1. The appellant appeals from a judgment of the Federal Circuit Court delivered on 5 February 2019 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 21 April 2016 to affirm a decision of a delegate of the Minister to refuse to grant to the appellant a protection (class XA) visa (the visa).

  2. The appellant says that the primary judge erred in two essential respects.

  3. First, it is said that he erroneously failed to find that the Tribunal, in finding that the appellant was not a truthful or credible witness, engaged in irrational or illogical reasoning, made findings without any probative basis, and failed to carry out its statutory task by failing to consider relevant information.

  4. Second, it is said that he erroneously failed to find that the Tribunal…

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Details
Case
[2019] FCA 1678
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia considered an appeal in the case of BEL16 v Minister for Home Affairs. The appellant, a Sri Lankan national, had applied for a protection visa after arriving in Australia as an unlawful maritime arrival. The primary issue was whether the decision by the Administrative Appeals Tribunal to refuse the appellant's visa application was legally sound. The appellant contested the Tribunal's finding that he was not credible and argued that the Tribunal erred in its handling of a police report that appeared to support his account of events.

The legal issues revolved around whether the Tribunal's credibility assessment was irrational or illogical, and if there was an incorrect treatment of the police report that undermined the decision-making process. The court had to determine if the Tribunal's errors were so significant as to amount to a constructive failure to exercise jurisdiction.

In its reasoning, the court identified two key errors in the Tribunal's decision. Firstly, the Tribunal's credibility finding was based on perceived discrepancies and implausibility in the appellant's story, without adequately considering the appellant's explanations. Secondly, the Tribunal incorrectly treated a police report that supported the appellant's account, leading to a flawed assessment of the evidence. The combination of these errors meant that the Tribunal did not properly exercise its jurisdiction. Consequently, the appeal was allowed, the Tribunal's decision was quashed, and the matter was remitted for rehearing. Additionally, the court ordered the Minister for Home Affairs to pay the appellant's costs in the Federal Circuit Court and the High Court.

Orders

Orders of the court

1. The appeal be allowed.

2. Order 1 of the orders made by the Federal Circuit Court on 5 February 2019 be set aside and in lieu thereof it be ordered that the decision of the second respondent made on 21 April 2016 be quashed and the matter be remitted to the second respondent for hearing and determination according to law.

3. Order 2 of such orders be set aside and in lieu thereof it be ordered that the first respondent pay the appellant’s costs of the proceedings in the Federal Circuit Court.

4. The first respondent pay the appellant’s costs of and incidental to the appeal in this Court to be taxed in default of agreement.

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

Background

Background to the litigation

Let me now turn to some relevant background to the present appeal.BACKGROUND The appellant is a Sri Lankan Tamil. He arrived in Australia on 20 June 2012 as an “unlawful maritime arrival”, and undertook what I would describe as a “Biodata” interview. On 13 August 2012 he participated in a much more detailed maritime arrival entry interview (the entry interview). He applied for the visa on or about 21 February 2013 and at that time made a detailed statutory declaration. He claimed to fear harm from the Sri Lankan Criminal Investigation Department (“CID”) arising out of a dispute between his father and his uncle on the one hand, and a politician with links to the CID on the other hand. The appellant asserted that his uncle had been detained by the CID. Further, upon the uncle’s release the uncle had informed the appellant’s father that the father was also under suspicion. At that point, so the appellant said, his father then vanished and apparently went into hiding from the CID. According to the appellant, shortly after all of this, CID officers attended the appellant’s home in search of his father. But when the CID did not find his father, the appellant claimed that the CID threatened that they would return and kidnap the appellant to secure the presence and giving up of his father. On 4 June 2014 the appellant was interviewed by the delegate. Ultimately, on 1 December 2014 the delegate refused the appellant’s application for the visa. The delegate did not accept the appellant’s claim and commented adversely on his credibility. On 21 April 2016, the Tribunal affirmed the decision of the delegate made on 1 December 2014 refusing to grant to the appellant the visa. It found that the appellant was not “a truthful or a credible” witness (at [67]). By his application for judicial review in the Federal Circuit Court challenging the Tribunal’s decision, the appellant advanced two grounds of review. The first was broadly that the Tribunal’s credibility finding was affected by jurisdictional error. The second was that the Tribunal fell into jurisdictional error in dealing with a police report that on its face was said to corroborate the appellant’s version of events. The primary judge rejected both grounds, and dismissed the application on 5 February 2019. It is not necessary for the moment to linger on his Honour’s reasons.GROUNDS OF APPEAL Let me address each ground of appeal in turn.(a) Ground 1 – the Tribunal’s credibility finding was affected by jurisdictional error The Tribunal found that the appellant was not a truthful or a credible witness. And broadly the Tribunal gave two reasons. First, it was said that the appellant had given differing accounts of why the CID was pursuing his father and uncle, which the Tribunal characterised as discrepancies. On this aspect it rejected the appellant’s explanations for such discrepancies. Second, it found that the reason that the appellant gave for the CID’s interest in his father and uncle was far-fetched and implausible.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

If ground two was the only error, I would say that it was not of itself material. But taken in combination with ground one, there was jurisdictional error. It has the capacity to bolster the appellant’s credibility to some extent although it adds little to whether now the CID would still be interested in the appellant as the Tribunal rightly said.(c) Conclusion As both grounds of appeal have been made out, the appeal must be allowed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.