BHF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 849
•23 July 2021
FEDERAL COURT OF AUSTRALIA
BHF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 849
Appeal from: BHF17 v Minister for Immigration and Anor [2020] FCCA 3142 File number: NSD 1310 of 2020 Judgment of: NICHOLAS J Date of judgment: 23 July 2021 Catchwords: MIGRATION – whether appellant should be given leave to raise new ground of appeal in respect of an issue not raised below – whether point has merit – where existing grounds of appeal not pressed – leave refused – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 36(2), 473CB Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 23 July 2021 Counsel for the Appellant: Mr G Foster Solicitor for the Appellant: Sentil Solicitor Solicitor for the First Respondent: Ms S Roberts of Mills Oakley Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 1310 of 2020 BETWEEN: BHF17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
Before me is an appeal from a judgment of the Federal Circuit Court (“the FCC”) dismissing an application for judicial review of a decision of the second respondent (“the IAA”). The IAA, by that decision, affirmed a decision of the delegate of the Minister for Immigration and Border Protection (“the delegate”) made on 14 September 2016 refusing to grant the appellant a Safe Haven Enterprise (subclass 790) visa (“the visa”).
The appellant is a Sri Lankan citizen who arrived at Cocos Islands on 26 October 2012 as an unauthorised maritime arrival. He participated in an entry interview on 27 January 2013, and on 9 March 2016 he applied for a Safe Haven Enterprise (“SHEV”) visa. The appellant attended a SHEV interview on 8 June 2016 where he was aided by a Tamil interpreter and represented by a migration agent. The appellant also provided written submissions following his interview which were considered by the delegate. On 14 September 2016 the delegate refused the appellant’s visa application.
THE AUTHORITY’S DECISION
The delegate’s decision was referred to the IAA on 19 September 2016. In its letter notifying the appellant of the referral, the IAA indicated that written submissions could be provided to it within 21 days and outlined the limited circumstances in which it could consider new information. No submissions were provided to the IAA by the appellant, and, accordingly, the IAA made its decision on the basis of the information referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”).
The IAA summarised the appellant’s claims for protection and noted the multiple bases for which the appellant claimed he would be harmed or killed if he is returned to Sri Lanka, namely that the appellant fears he will be seriously harmed or killed because of his Tamil ethnicity and his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (“the LTTE”). The appellant also fears he will suffer serious harm because of his historical support for the Illankai Tamil Arasu Kachchi (“ITAK”) political party, his illegal departure from Sri Lanka and the fact he sought asylum in Australia. Each of these claims were addressed by the IAA in turn.
The IAA referred to country information which indicated that the civil war concluded in 2009 and that following the 2015 election policy changes had stopped the forced registration of Tamils, led to the removal of most checkpoints and that “the monitoring and harassment of Tamils in their day to day life has generally ceased”. The IAA went on to accept however that country information indicates that Sri Lankan authorities do continue to monitor Tamils and continue to perpetrate human rights abuses against individuals found to have been involved with the LTTE. The IAA then considered United Nations reports that indicate that an assessment of an individual’s real or perceived links to the LTTE may give rise to protection obligations depending on the circumstances of the individual’s case. The IAA accepted the appellant’s claims regarding the work he was forced to complete for the LTTE but noted that the appellant did not undergo any weapons training or fight for the LTTE, and instead his work was limited construction work and land clearing over a period of four months in 2005.
The IAA found that the evidence before it indicated that the appellant was issued with a Sri Lankan passport, and was employed by a government agency from 2009 until his departure. The IAA then referred to the appellant’s SHEV interview and noted that the appellant was in regular contact with his family members and that none of his family members had any difficulties or problems with the Sri Lankan authorities before or after the appellant’s departure from Sri Lanka. The IAA found that the appellant’s fears relating to his involvement with the LTTE were not well founded.
In considering the appellant’s fears based on his involvement with the ITAK the IAA accepted his claims that he was a known supporter and helped organise a public meeting in the lead up to the September 2012 election. The IAA also accepted that the appellant had received threatening calls and that one of his family members had received a threatening visit in the lead up to the election. The IAA noted that the appellant’s claims were supported by country information that indicated that the 2012 elections were marred by violence particularly in the appellant’s province.
The IAA went on to state at [19] of its reasons that:
… Whilst I accept that politically motivated violence, particularly around election time, occurs in Sri Lanka, the evidence indicates that it is greatly reduced in recent elections. This, combined with the strong position of the ITAK and the TNA [Tamil National Alliance] in the east of Sri Lanka, and the more than four years that have passed since the applicant was politically involved, leads me to find that the applicant does not face a real chance of serious harm from paramilitaries and/or the Sri Lankan government because of his previous active support for ITAK in 2012. I am satisfied that the applicant’s fears of persecution in this regard are not well-founded.
The IAA then considered the appellant’s claims regarding the harm he feared he would suffer at the hands of the Sri Lankan authorities due to his illegal departure and his seeking asylum in Australia. The IAA found that the appellant was likely to face some consequences for illegally departing Sri Lanka and seeking asylum in Australia but that, based on the country information before it, this would likely amount to a fine and would not amount to serious harm.
Accordingly, the IAA found that the appellant did not meet the requirements contained in ss 5H(1) or 36(2)(a) of the Act. The IAA then considered whether the appellant would nevertheless satisfy the requirements contained in s 36(2)(aa). For reasons similar to those it had previously given, the IAA was not satisfied the appellant would face a real risk of suffering significant harm if he was returned to Sri Lanka and found that the requirements in s 36(2)(aa) were not met.
The IAA therefore affirmed the delegate’s decision not to grant the appellant a protection visa.
THE PRIMARY JUDGE’S DECISION
On 27 March 2017 the appellant filed an application for judicial review of the IAA’s decision. This application was amended on 26 March 2020 with the amended application containing a single ground of review claiming that the IAA did not refer to evidence or material to support its findings at [19] and came to a conclusion that was illogical, irrational or unreasonable. The FCC held that the IAA’s findings at [19] were supported by evidence before it, namely paras 2.2 and 3.26 of the DFAT Report of 18 December 2015 (“the DFAT Report”) and that it was not unreasonable to infer that the IAA had regard to that information. In the result, the FCC held that the IAA’s decision was not affected by jurisdictional error and dismissed the application.
I turn now to the appellant’s grounds of appeal.
The grounds of appeal contained in the appellant’s notice of appeal are:
(1)The Federal Circuit Court failed to find that the IAA declined its jurisdiction to the Appellant.
(2)The Federal Circuit Court erred when it found the Authorities’ [sic] decision is not affected by jurisdictional error.
In addition to these grounds of appeal the notice of appeal states that he “relies on the grounds and particulars … already stated in his FCC Amended Application”.
In his oral submissions counsel for the appellant indicated that the only point pressed on appeal was that the IAA’s finding at [19] that “politically motivated violence … is greatly reduced in recent elections” was not supported by probative evidence in the sense that the evidence before the IAA did not concern recent elections. There is no reference to this ground of appeal in the appellant’s notice of appeal.
CONSIDERATION
The first respondent submitted that this argument was not raised before the primary judge, no explanation as to why the submission was not made before the primary judge was provided and the submission lacks merit such that leave to rely on it should be refused. The appellant’s counsel accepted that the submission was not expressly made to the primary judge but submitted that it formed a part of the appellant’s overall case before the FCC. I do not accept that submission. There is nothing in the primary judge’s reasons that indicates that any submission was advanced before him in relation to the date of the elections referred to at the relevant paragraphs of the DFAT Report. Further, no explanation has been provided as to why the argument was not raised before the FCC in circumstances where the appellant was represented by the same counsel before the primary judge and on appeal.
Counsel for the appellant submitted that there was no probative evidence before the IAA that supports its finding that politically motivated violence had reduced in recent elections. In particular, he submitted that the period of time between the 8 January 2015 and 17 August 2015 elections referred to in the relevant paragraphs of the DFAT Report and the date of the IAA’s decision meant that the IAA’s finding at [19] was not supported by any probative evidence and that this amounted to jurisdictional error.
In assessing whether a finding is legally unreasonable the question is whether there is a rational and logical basis supported by probative evidence for that finding: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [23]-[26], [30]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [130]-[131]. This includes findings of fact made on the way to an ultimate decision. Jurisdictional error in this sense can only be made out where “extreme” illogicality or irrationality is demonstrated and it is not enough that reasonable minds may differ: SZMDS particularly at [131]; CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60].
The appellant’s counsel accepted in oral argument there was no information before the IAA in relation to any more recent elections than the 2015 elections contained in the DFAT Report. He also accepted that had the IAA said “most recent” instead of “recent” at [19] then his argument could not succeed.
The IAA’s reasons are not to be read with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In my view, nothing turns on the IAA’s use of “recent” compared to “most recent”. In circumstances where (as the appellant now accepts) the IAA had regard to the DFAT Report and where the information contained in that report relating to politically motivated violence during elections concerned the most recent elections at the time of the IAA’s decision I do not accept the appellant’s submissions that its finding at [19] was not supported by probative evidence.
DISPOSITION
In my view the new ground of appeal lacks merit and leave to rely on it will be refused. In the result the appeal will be dismissed with costs awarded to the first respondent.
Orders accordingly.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 23 July 2021
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