BJK15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1334
•15 August 2019
FEDERAL COURT OF AUSTRALIA
BJK15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1334
Appeal from: BJK15 v Minister for Immigration and Anor [2019] FCCA 347 File number: WAD 117 of 2019 Judge: MCKERRACHER J Date of judgment: 15 August 2019 Date of publication of reasons: 20 August 2019 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – where the primary judge dismissed the application of judicial review of a decision of the Refugee Review Tribunal – whether the Tribunal failed to have regard to material before it – whether the primary judge erred in concluding material sought to be handed up at the Court hearing was inadmissible
Held: appeal dismissed
Date of hearing: 15 August 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant appeared in person, with the assistance of an interpreter Counsel for the First Respondent: Mr TM Lettenmaier Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to the question of costs ORDERS
WAD 117 of 2019 BETWEEN: BJK15
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
15 AUGUST 2019
THE COURT ORDERS THAT:
1.The First Respondent’s name be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The appeal be dismissed.
3.The Appellant pay the costs of the First Respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPTMCKERRACHER J:
The appellant appeals from a judgment and orders of the Federal Circuit Court of Australia made on 19 February 2019 by which the primary judge dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (as it then was).
The appellant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival on 20 June 2012. In December 2012, he lodged an application for a protection (class XA) visa after the Minister for Immigration and Citizenship (as then named) had lifted the s 46A bar permitting him to do so on 7 November 2012.
THE CLAIMS
The appellant claimed to fear harm on the basis of his ethnicity, his imputed political opinion, membership of a particular social group of young Tamil males and for reasons of his illegal departure from Sri Lanka and the consequences of return. He claimed that in or around March 2009, his uncle and his cousin were caught in a fight between the Liberation Tigers of Tamil Eelam (the LTTE) and the Sri Lankan Army (the SLA). He claimed that his cousin was caught in a shelling and his body had never been found. He claimed that one month after the incident the Criminal Investigation Department (the CID), questioned the appellant and his uncle as to the whereabouts of his cousin’s body. In 2010, once again, the CID questioned his cousin’s family. He was at the house at the time and was also interrogated.
The appellant’s family then sent him to Qatar for two years. He claimed that while he was there, the CID questioned his other cousin, to whom I will refer to as the second cousin and beat his uncle. As a result, the second cousin went into hiding and came to Australia. In May 2012, the appellant returned to Sri Lanka. He said that four men whom he assumed to be CID went to his house, questioned him about the second cousin’s whereabouts and threatened him. Arrangements were subsequently made for the appellant to leave Sri Lanka and, he says, that since his departure people have been to his house inquiring about his whereabouts and that they have mistreated his father.
A delegate of the Minister refused to grant a visa on 26 March 2014. Later that month, the appellant lodged an application for review to the Tribunal.
IN THE TRIBUNAL
The Tribunal made adverse credibility findings about the appellant. It found that important aspects of the appellant’s claims were not credible and therefore, were rejected as being unreliable, exaggerated or fabricated for the purposes of strengthening his protection claims. The Tribunal did not consider that the appellant had come to the attention of the CID as he claimed. The Tribunal found in all the circumstances that the appellant was not a person of interest to the Sri Lankan authorities after 2010 and that he does not face a real chance of serious or significant harm should he return to Sri Lanka.
The Tribunal also had regard to country information and on that evidence found that the appellant did not face a real chance of serious harm for reasons of being a Tamil youth now or in the reasonably foreseeable future should he return to Sri Lanka. It also considered the possible detention he may face as a consequence of the application of Sri Lankan migration law and the unapproved departure, but concluded the laws were non-discriminatory and of a general application to anyone in that position.
The Tribunal also dismissed claims by the appellant that he would face a real chance of any serious harm as a consequence of returning as a failed asylum seeker. As to complementary protection criteria, the Tribunal did not consider that the appellant might face significant harm giving rise to protection obligations. The Tribunal affirmed the decision of the delegate.
IN THE FEDERAL CIRCUIT COURT
The appellant then sought review by the Federal Circuit Court and it is the decision of that Court from which the appellant now appeals.
On his review application to the Federal Circuit Court, the appellant raised three grounds of appeal. The first was a failure by the Tribunal to follow the rules of natural justice. The second was an error of law on the face of the record and the third was a review of delegated legislation on the grounds of ultra vires. None of those grounds in terms is raised on the appeal before me today so it is unnecessary to dwell at length on the quite detailed reasons of the Federal Circuit Court. But I have examined and see no error in the primary judge’s approaches in relation to those grounds.
IN THIS COURT
The sole ground of appeal before me today in respect of the judgment of the Federal Circuit Court is ‘jurisdictional error due to no[t] following or [sic] facts presented’. In argument before me the appellant has made clear, which is indeed not in doubt, that he tried to produce documents to the Federal Circuit Court, but the Federal Circuit Court would not accept them.
What is raised before me today relates primarily to the appellant’s attempt to hand up materials to the Federal Circuit Court, mainly being documents post-dating the Tribunal decision, therefore, being documents which could not have been before the Tribunal. His Honour, after quite careful consideration of the position and the recitation of the principles (at [15]-[19] of his Honour’s reasons), determined that materials which were not before the Tribunal could not be the subject of complaint before him as the Tribunal did not have the opportunity to consider those materials.
There were also some materials which the appellant sought to hand up before the primary judge which were dated 2014 and his Honour held that to the extent that the appellant sought to rely on those materials, they ought to have been provided to the Tribunal.
Although the oral matters that were raised in the Federal Circuit Court by the appellant largely went to material which he sought to put to the primary judge, he also complained before the primary judge and I infer before me, that the Tribunal had not considered other material. His Honour, correctly, dealt with that in his reasons (at [52]-[53]):
52.The applicant made a brief oral submission that he had submitted lots of materials and he did not think the Tribunal took them into consideration. The Court has examined the materials in the Court Book and notes the documents the applicant appeared to provide the Tribunal were two sets of written submissions from his migration agent, the Police Letter and S’s death certificate. The Tribunal referred to those documents in the Tribunal Decision as follows:
a.at CB 347 at [61] it was not satisfied the Police Letter was genuine and afforded it little weight as a result, something it was entitled to do for the reasons it gave;
b.at CB 343 at [38] it referred to S’s death certificate and did not appear to cavil with the notion that S was dead; and
c.the written submissions were addressed throughout the Tribunal Decision and a number of the sources of country information referred to by the applicant’s migration agent were included or referenced by the Tribunal.
53The Court is not satisfied the applicant’s oral submission discloses any jurisdictional error.
The appellant said in argument before me that the documents which did relate to recent events were ones that he was not able to produce before the Tribunal, as I infer, the documents did not exist at that time. He explained that he was unable otherwise to give anything in writing before the Tribunal because the events happened to him and he was the one who knew them to be true, but it appeared that the Tribunal did not believe him. He approached lawyers who said that they would be possibly able to appear for him in the Federal Circuit Court, which they did, but not in this Court.
The appellant sought again to produce similar documents in this Court, described as being documents supporting his case but being created after the time of the Tribunal hearing. Counsel for the Minister opposed the production of those documents. I upheld that objection for the same reasons as given by the primary judge.
The arguments in support of the ground of appeal and the points which have been made orally are, in substance, a merits challenge. As the Minister contends, the task of the Federal Circuit Court was to determine whether the Tribunal’s decision was affected by jurisdictional error and the role of this Court is to determine whether the Federal Circuit Court judgment was affected by appellable error. Although an appeal to this Court is by way of a re-hearing, it does remain necessary to demonstrate an error in the judgment appealed from. It is not an opportunity to revisit the merits of a decision of the Tribunal. Save for exceptional cases the task of a court on an appeal on re-hearing is to correct error, if any, on the part of the primary judge.
In my assessment the decision of the primary judge was consistent with well-established principle. It was not affected by any appellable error and the primary judge was correct to conclude that there was no error on the part of the Tribunal.
In those circumstances as the new ground of appeal fails, the appeal must be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 20 August 2019
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