BJN15 v Minister for Immigration and Border Protection
[2018] FCA 679
•16 May 2018
FEDERAL COURT OF AUSTRALIA
BJN15 v Minister for Immigration and Border Protection [2018] FCA 679
Appeal from: BJN15 v Minister for Immigration Anor [2016] FCCA 2574 File number: VID 1159 of 2016 Judge: MCKERRACHER J Date of judgment: 16 May 2018 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – where the primary judge dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal – where the Tribunal affirmed the decision under review denying the appellant’s application for a protection visa – where the appellant sought the grant of a Protection (class XA) visa
Held: appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 424A, 424AA, 424A(2A), 424A(3)(a), 425 Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413
Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404
Date of hearing: 10 May 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr CJ Tran Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to the question of costs ORDERS
VID 1159 of 2016 BETWEEN: BJN15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
16 MAY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to 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
MCKERRACHER J:
The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Refugee Review Tribunal (as it then was, now the Administrative Appeals Tribunal): BJN15 v Minister for Immigration Anor [2016] FCCA 2574. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (as it then was) not to grant the appellant a Protection (class XA) visa.
The notice of appeal, in effect, raises three grounds. Those grounds differ from the grounds of review pursued before the Federal Circuit Court.
Prior to the commencement of the hearing of this appeal, and as confirmed by the appellant, the Minister’s submissions were translated for him by the interpreter who appeared with him at the appeal. The appellant indicated that he had not received the Federal Court appeal book, but the oral submissions that he made demonstrated that he had a full understanding of the factual issues and the basis of his complaints. He confirmed that he had received the appeal book in the Federal Circuit Court, that he had been present for the delivery of the ex tempore judgment in the Federal Circuit Court and, as indicated, that he had heard the submissions for the Minister in response to his grounds of appeal, prior to the commencement of the appeal. No application for an adjournment was made on the basis of non-receipt of this Court’s appeal book. I note that the appellant had been in receipt of all materials prior to commencement of the appeal, but for the Minister’s submissions, to which he did not, in the course of his address, take any objection. Indeed, he expressly accepted that he could point to no errors of law, but his concern was with the fact finding, and the process of fact finding, to which I will refer below.
BACKGROUND
The appellant is a national of Sri Lanka. He arrived in Australia on Christmas Island as an unauthorised maritime arrival on 15 July 2012.
By application received on 8 November 2012, the appellant applied for a visa. A delegate of the Minister refused that application on 2 August 2013. The appellant lodged an application with the Tribunal seeking review of the delegate’s decision. On 19 June 2015, the Tribunal affirmed the delegate’s decision.
THE CLAIMS
The appellant claimed to be in danger of persecution due to his Tamil ethnicity, his imputed political support of the Liberation Tigers of Tamil Eelam (LTTE) and as a failed asylum seeker.
In particular, the appellant claimed that:
(a)his brother had been missing since 2002;
(b)he and his mother were beaten by Criminal Investigation Division (CID) and army members in January 2006;
(c)his uncle was shot and killed in 2008;
(d)his father was beaten as a suspected supporter of the LTTE; and
(e)about eight or nine days after returning home to Sri Lanka from Dubai (where he said he fled to avoid persecution), members of the Sinhalese army or CID came to his home searching for him.
In written submissions made on the appellant’s behalf to the Tribunal, the claim was repeated that the appellant faced persecution on account of his race, imputed political opinion, and membership of a particular social group, namely, failed asylum seekers.
IN THE TRIBUNAL
In relation to the appellant’s family members:
(a)the Tribunal did not accept that the appellant’s brother was missing and had not been heard of since 2002;
(b)the Tribunal was prepared to accept that his father had been detained and beaten on suspicion of supporting the LTTE, but it did not accept that his father “continues to be suspected of supporting the LTTE”, having regard to the time that had elapsed without evidence of further incidents; and
(c)the Tribunal accepted as plausible that the appellant’s uncle was killed by government agents.
In relation to the appellant personally, the Tribunal accepted that he was beaten by men from the CID and the Sri Lankan Army (SLA) in January 2006. However, after noting “nothing further happened to [the appellant]” in relation to the Sri Lankan authorities and his lack of difficulty in gaining a passport, the Tribunal was not satisfied that the Sri Lankan authorities had any adverse interest in the appellant.
Following consideration of country information, the Tribunal did not accept that the appellant faced a real chance of serious harm on account of being a failed asylum seeker, nor for essentially the same reasons, that he was owed complementary protection.
IN THE FEDERAL CIRCUIT COURT
The appellant applied to the Federal Circuit Court for judicial review. By an amended application filed by the appellant’s lawyer, only one ground of review was pursued, namely, that the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth). The appellant argued that the matter in [86] of the Tribunal’s reasons had not been put to the appellant for comment, which said:
As put to the [appellant] at the hearing, the Tribunal finds that on return to Sri Lanka the [appellant] will be questioned at the airport and will undergo identification, character and security checks. He will be held on remand, released on bail, to appear at a later date before a magistrate charged with having departed the country illegally in breach of Sri Lanka’s immigration and emigration laws. These are laws of general application applicable to the entire Sri Lankan population. On the evidence available to the Tribunal, it is satisfied that the [appellant] 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. The Tribunal is satisfied, after assessing the evidence that the [appellant] will be convicted for his illegal departure and fined an amount between 5,000 and 50,000 Sri Lankan rupees. The Tribunal finds this treatment does not amount to serious harm for a Convention reason.
(emphasis added)
The Federal Circuit Court held that the Tribunal’s reasons firmly suggested that it had put to the appellant the issue of bail and family members providing a surety, in the context of putting country information about these matters to the appellant. This is clearly so and further, I note that at the hearing of the appeal, counsel for the Minister confirmed from the bar table, and I accept, that he had taken steps to listen to the recording of the hearing and that the impression naturally formed by the primary judge from the words appearing at the commencement of [86], was indeed correct. The primary judge held that this case was like that in SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404, where the Full Court held that the ability of a family member to provide surety was not a dispositive issue, and unlike Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507.
The Federal Circuit Court ultimately dismissed the application.
CONSIDERATION
The grounds of appeal pursued by the appellant in this Court were not raised in the Federal Circuit Court. Leave is required to raise new grounds and must be refused if the grounds have no prospect of success.
Ground 1
The first ground of appeal is that:
The Tribunal accepted that the [appellant] would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly not assessed this integer claim and fell into jurisdictional error.
The Tribunal found that the appellant would be briefly remanded, but that he would make bail and ultimately only be fined. The appellant now contends that the Tribunal erred in not considering whether a brief period of remand would constitute persecution, engaging s 36(2)(a) of the Act and entitling him to a visa.
The Tribunal did have regard to this matter in considering the refugee criterion in s 36(2)(a) and in considering the alternative criterion in s 36(2)(aa) of the Act as then in force.
This ground has no prospects of success and leave will not be permitted to advance it.
Ground 2
The second ground of appeal is that the primary judge “erred by holding with the Tribunal that the appellant’s claim was cumulatively assessed but it was not”.
The primary judge did not hold this explicitly, because this issue was not put by the appellant in the Federal Circuit Court. The appellant is now seeking to challenge the paragraph of the Tribunal’s reasons where it says that it considered his circumstances, “both separately and in combination” and that the appellant “does not face a real chance of serious harm on cumulative grounds”.
The appellant has not identified or explained any failing of the Tribunal. It considered all of the claims made by the appellant, and there is nothing to suggest that the Tribunal failed to consider them as a whole. There is no basis on the materials in the Appeal Book for not taking the Tribunal at its word.
This ground has no prospects of success and leave will not be permitted to advance it.
Ground 3
The third ground of appeal is that the Tribunal breached s 424A of the Act because it did not give the appellant particulars and “acted in haste and refused the application”.
There is nothing to suggest that the Tribunal acted “in haste”. A hearing took place on 19 January 2015 and the Tribunal did not publish a decision until 19 June 2015.
There is nothing to suggest that the Tribunal failed to comply with s 424A of the Act. Section 424A does not apply if the Tribunal has complied with s 424AA by providing those particulars at the oral hearing: s 424A(2A). Under s 424A, particulars not specifically applying to an applicant, such as country information, need not be provided: s 424A(3)(a). Further, the Tribunal’s mental processes or doubts about the evidence do not constitute “information” within the meaning of these provisions: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (at [18]). In reaching its decision, the Tribunal relied upon country information and its own doubts about, and analysis of, the evidence, which did not have to be disclosed.
The reasons of the Tribunal reveal (at [27], [29]-[30], [32], [34]-[35], [38]-[40], [44], [50]-[51] and [58]-[59]) that, in truth, it did put a lot of matters to the appellant, whether the Tribunal was obliged to do so or not. An objective reading of the Tribunal’s reasons does not support the Appellant’s contention.
This ground has no prospects of success and leave will not be permitted to advance it.
Oral submissions
The appellant raised the complaint that he had been represented by a lawyer at the outset who had then discontinued. He noted that the Court had provided another pro bono lawyer, but that the pro bono lawyer had abandoned him and declined to proceed. He made the point that it was difficult for him to argue the case without the benefit of a lawyer. He did not seek an adjournment to obtain a lawyer as such, but, in any event, had such an application been made, it could not be acceded to. The appellant had, at least, the benefit of two lawyers to argue his case, which is a superior position to many in his position. There can be no guarantee of legal advice in the courts as much as legal representation may benefit all concerned.
The second and substantial point made by the appellant with some vigour was his concern that the Tribunal did not truly understand problems existing in Sri Lanka and that the only proper way for the Tribunal to understand those problems would be to visit Sri Lanka. To reach conclusions on the basis of country information contained in papers was not, in the appellant’s opinion, a reliable or accurate measure of the dangers to which he would be exposed. From the bar table, the appellant spoke of very grave difficulties one of his friends had recently suffered on his return to Sri Lanka. This material, of course, was not before the Tribunal. No application was made to adduce the evidence, nor could it be acceded to if the application was made. The appellant also spoke forcefully about the fact that the Tribunal was relying upon generalisations about safety in Sri Lanka, as distinct from looking at his specific position. I am not satisfied that either of these complaints is valid. Having read the Tribunal’s decision, I am satisfied that the Tribunal did fully explain the method by which it arrived at its facts. It is true that in part, the Tribunal took into account country information, but that does not reveal any legal error. It is for the Tribunal to determine what weight to give country information.
The grounds taken together and individually complain about the regard had to the material and the outcome. As the High Court and this Court has made clear, the fact that the complaints of an appellant may be as to fact finding, or indeed credibility, does not automatically protect the decision from examination for jurisdictional error. However, the categories of case in which such findings may be reviewed are specific and limited: see CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 (at [38]). Nonetheless it is essential to recognise that it is not within the power of this Court nor the Federal Circuit Court to act as a fact finder. It is the legality of the decision of the Tribunal or the court that is in issue.
No other error
The primary judge made no other appealable error. In particular, the primary judge was not wrong to conclude that the Tribunal had not breached s 425 in this case.
I note that in SZTQS, Griffiths J upheld a decision by the Federal Circuit Court that the Tribunal had breached s 425 by finding that the applicant could obtain bail and that his family could provide surety, in circumstances where the delegate had not gone into that issue and the Tribunal had not put the issue to the applicant for comment. But as Robertson and Kerr JJ explained (and Logan J concurred) in SZTAP (at [76]), “SZTQS does not stand for a high-level proposition that every reference to a family member being required to provide surety involves a breach of s 425(1) of the Act”.
In this case, while the delegate did not go into this issue, the Tribunal put the appellant on notice by putting to him the country information that raised the issue. A Tribunal may put an applicant on notice of an issue in many different ways: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (at [47]). In this instance, doing so by putting country information to him raising the issue was sufficient.
CONCLUSION
The appeal must be dismissed with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 16 May 2018
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