BJN15 v Minister for Immigration

[2016] FCCA 2574

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJN15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2574

Catchwords:
MIGRATION – Judicial review.

Legislation:

Migration Act 1958 (Cth), s.425

Emigration and Immigration Act 1949 (Cth)

Cases cited:

SZTAP v Minister for Immigration and Border Protection [2015] FCA FC 175

Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069

Applicant: BJN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1621 of 2015

Judgment of: Judge Harland

Hearing date: 13 September 2016

Date of Last Submission: 13 September 2016

Delivered at: Dandenong

Delivered on: 13 September 2016

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Counsel for the Respondents: Mr Leerdam

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed 15 July 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1621 of 2015

BJN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. By way of amended application for judicial review filed on 1 September 2016 the applicant relies on one ground which is that the Tribunal fell into jurisdictional error and breached section 425 of the Migration Act 1958 (Cth) by failing to put to the applicant and give the applicant an opportunity to comment on a particular finding the Tribunal made. The applicant’s complaint focuses on paragraph 86 of the Tribunal’s decision and in particular the following sentence:

   On the evidence available to the tribunal, it is satisfied that the applicant will be held on remand for a number of hours, or a number of days if he arrives on a weekend or public holiday.  The tribunal is satisfied that he will be able to make the bail payment and he has family members who will be able to collect him and provide a surety.

3. The applicant says that this is an issue that the Tribunal itself raised rather than an issue that the delegate identified. It was not an issue raised by the applicant.  It was a matter that should have been put to the applicant specifically with him having an opportunity to comment on it.  The respondent says that whilst that sentences could be better worded, it is really simply referring to country information.

4. In addition to paragraph 86 of the Tribunal’s decision it is necessary to consider paragraphs 51 to 53, 79, 85 and 91 to 93.  Those passages deal with the issue that the applicant complains of.  At paragraphs 51 and 52 the Tribunal decision records that it put the country information to the applicant regarding failed asylum seekers returning to Sri Lanka.  It summarises that information and says that it is a law of general application applying to all returnees regardless of their ethnicity. 

5. The Tribunal refers to the returnees being arrested and charged with an offence under the Emigration and Immigration Act 1949, being fingerprinted, photographed and transported to the Magistrates Court where they will be held on remand and released on bail with a family member providing surety. The period of remand may vary depending on whether or not a person arrives on a weekend or public holiday and it talks about a fine being imposed. As far as DFAT is aware no returnee has been sentenced to a term of imprisonment.

6. It is clear in those paragraphs that the Tribunal identifies the issue of bail and a family member providing a surety.  It does not talk about any financial aspect of bail if there is one and certainly I accept that the delegate didn’t go into the country information in this sort of detail that’s there before the Tribunal.  It’s clear from paragraphs 53 and 54 that the applicant and the applicant’s representative responded to the country information and that what the applicant was referring to of being fearful was once he was back in the village. 

7. The Tribunal further discusses the country information at paragraph 79 and refers to the country information summarised at paragraphs 51 and 52 and it says put to the applicant at the hearing.  In the final sentence of that paragraph the Tribunal says that there was nothing in the applicant’s profile that would place him outside of the majority of returning asylum seekers that would result in his experience on return being different to the majority of returnees. 

8. At paragraph 86 the Tribunal again finds that whilst the applicant will be questioned at the airport, undergo identification, character and security check, being held on remand, to be released on bail to appear at a later date, that these laws are of general application applying to the Sri Lankan population.  The offending sentences then appear and the Tribunal concludes in the last sentence of that paragraph that this treatment does not amount to serious harm for a Convention reason. 

9. The Tribunal again refers to the conditions of return in paragraphs 91 to 93 and finds that given the applicant’s profile he will not be subjected to degrading treatment, punishment or harm and that the law is of general application and there is no intent to deprive or carry out cruel or inhuman punishment to the applicant and that the purpose of the detention is to remand him to appear on a charge of breaching the immigration and emigration laws of Sri Lanka. 

10. The applicant also relies on a decision of Griffiths J of the Federal Court in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”).  The applicant says that that case is similar to the current case in that it was the issue of bail and the family member providing surety was a crucial plank of the Tribunal’s finding and that in those circumstances this should have been specifically put to the applicant. 

11. The respondent’s position is that whilst the wording in that middle section of paragraph 86 is probably unfortunate, it is clear that the Tribunal is doing is referring back to the country information that it has previously set out and which the Tribunal has made clear at several points in the decision having put to the applicant for comment and indeed the applicant and his representative did make comment which the Tribunal also referred to. 

12. The respondent argues that SZTQS is a very fact specific case, was recognised as such by the Full Court of the Federal Court in SZTAP v Minister for Immigration and Border Protection [2015] FCA FC 175 (“SZTAP”) and at paragraph 78 of that decision in particular the Full Court noted that in the particular circumstances of SZTQS he had been arrested and taken to the local court house where his mother paid bail for his release two days before he left Sri Lanka.  He also had given evidence that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally and without permission.  This is dealing with a particular profile or individual circumstance of SZTQS. The Full Court at paragraph 76 of that decision said that:

    SZTQS does not stand for a high level proposition that every reference to a family member being required to provide surety is a breach of section 425 subsection (1) of the Migration Act.

13. The Full Court also noted at paragraph 75 that whilst there were some similarities between the two cases and the Tribunal had made a finding that bail was routinely given on the accused’s own recognisance although a family member is required to provide surety and whilst acknowledging that the Tribunal did not put the applicant on notice prior to making its decision that there was an issue as to whether a family member would provide surety in respect of a term of any bail. 

14. It went on to find that in the circumstances that was not a critical finding and there’s a further distinction between SZTAP and the current case which is that reading the Tribunal record and in the absence of a transcript the Tribunal record shows that the tribunal did put the country information to the applicant and sets out the country information in some detail, part of which is the issue of bail and surety by family members.  In the absence of a transcript the decision record is to be assumed as being an accurate reflection of the hearing and the Tribunal’s reasons. 

15. In my view it would be necessary to have a transcript to show that that was not put to the applicant.  In my view, given the number of references to the country information in the Tribunal’s decision, I cannot be satisfied that is the case and, even if it was, that seems to fall into the category of what SZTAP dealt with.  I find that the Tribunal did not make a jurisdictional error and I will dismiss the application. 

16. The respondent seeks an order that the applicant pay costs below this amount allowed for in the Federal Circuit Court rule scales in the sum of $6,500.00.  The applicant says that as a refugee he has no ability to work and has no ability to pay any costs order.  Whilst conceding that costs ordinarily follow the event in matters of this type, impecunity itself is not a reason for the court not to make a costs order.  This case falls in the ordinary category of judicial review cases before this court. 

17. Whilst acknowledging the submissions that Mr Gordon has made on the applicant’s behalf, I am not satisfied that there’s a reason to depart from the ordinary rule, particularly given the amount is less than the amount permitted under the scale so I propose to order that the applicant pay the respondent’s costs in the sum of $6,500.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 5 October 2016