BKX15 v Minister for Immigration and Border Protection
[2018] FCA 967
•15 May 2018
FEDERAL COURT OF AUSTRALIA
BKX15 v Minister for Immigration and Border Protection [2018] FCA 967
Appeal from: BKX15 v Minister for Immigration and Anor [2017] FCCA 2972 File number: NSD 2247 of 2017 Judge: LOGAN J Date of judgment: 15 May 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court –alleged failure to consider a component integer of protection visa application. Held – no error – ground of appeal wanting for particularity – appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 46A, 414 Cases cited: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26
SZTAL v Minister for Immigration and Border Protection [2017] 91 ALJR 936
Date of hearing: 15 May 2018 Date of last submissions: 15 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Minter Ellison ORDERS
NSD 2247 of 2017 BETWEEN: BKX15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
15 MAY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed 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 Transcript)LOGAN J:
The appellant is, and has been accepted administratively as, a citizen of Sri Lanka. He came to Australia on 16 July 2012 by boat, as what is termed an unauthorised maritime arrival. The following month, on 22 August 2012, the Minister for Immigration and Border Protection (Minister) lifted what is termed a “bar” pursuant to s 46A of the Migration Act 1958 (Cth) (the Act). That allowed the appellant to make an application under the Act for a protection visa.
On 2 October 2013, a delegate of the Minister refused the appellant’s protection visa application. The appellant then sought the review of that decision, on the merits, by what was at the time a body known as the Refugee Review Tribunal. On 12 June 2015, for reasons given in writing that day, that Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa. Since then, the role of the Refugee Review Tribunal has been assumed by the Administrative Appeals Tribunal (Tribunal).
The appellant sought the judicial review of the Refugee Review Tribunal’s decision by the Federal Circuit Court. In those proceedings, he had the benefit of representation by counsel and solicitor. On 4 December 2017, that Court dismissed with costs the appellant’s judicial review application. The appellant has now appealed to this Court against that order of dismissal. As might be expected, the Tribunal has filed a submitting appearance. The Minister is, therefore, the only active party respondent.
There is one ground of appeal. It is “His Honour erred when he did not find that the Tribunal failed to consider s 414 of the Act because it failed to consider a component integer of the applicant’s claim”. As was correctly conceded on behalf of the Minister, a failure on the part of the Tribunal to consider what is termed an “integer” of a protection visa claim can amount to a failure to discharge the Tribunal’s task of reviewing the decision in respect of a claim for protection as made: see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26.
The appellant appeared on his own behalf on the hearing of the appeal, with the assistance of an interpreter. His ground of appeal, whilst reflecting a jurisdictional error known to law and hence a basis, in theory, if not detected by the Federal Circuit Court, for the upholding of an appeal, was wanting in particularity as to the component integer not considered by the Tribunal. I specifically offered the appellant, in the course of his oral submissions, and without success, more than one opportunity to give particularity to the component integer allegedly not considered by the Tribunal. It became apparent from the appellant’s submissions in reply that he disagreed with the Tribunal’s assessment of the evidence which he gave in support of his claim for protection.
There is a distinct difference between a failure on the part of the Tribunal to consider a component integer of a protection visa claim on the one hand and a consideration of the claim as made, but a rejection in whole or in part of evidence given by or in support of that application by or on behalf of the visa applicant. The former is a jurisdictional error. The latter, if expressed logically and rationally and reflecting conclusions reasonably open on the material before the Tribunal, gives rise to no jurisdictional error. The Tribunal is not obliged to accept uncritically the evidence given or submitted by an applicant. Further, the Tribunal is entitled to make findings as to credibility.
In a statutory declaration made on 10 December 2012, lodged in support of his protection visa claim, the appellant stated at paras 19 and 20 the following:
19.I fear I will be harmed/mistreated for reasons of my race: I am Tamil. As an ethnic minority, Tamils are regularly discriminated against and persecuted in Sri Lanka.
20.I fear I will be harmed/mistreated for my membership of a particular social group: failed Tamil asylum seekers. Failed asylum seekers are treated as former LTTE members and/or anti-Government. Failed asylum seekers are detained, interrogated and harmed.
In the Tribunal’s reasons, the Tribunal recited, at para 10, its understanding as to the basis of the protection visa application made by the appellant:
The applicant fears being detained, interrogated, tortured, abused or killed by the Sri Lankan authorities, paramilitary groups and anti-Tamil groups for reasons of his ethnicity and membership of the particular social group of failed Tamil asylum seekers. Failed asylum seekers are treated as former LTTE members or as being anti-government.
Ground 2 of the judicial review application considered by the Federal Circuit Court asserted, as the learned primary judge recited at para 12, that the Tribunal’s decision was affected by jurisdictional error because it failed to consider an integer of the applicant’s claims when it considered the complimentary protection criterion for the protection visa at s 36(2)(aa) of the Act.
The learned primary judge, as his reasons for judgment disclose, made a most searching examination indeed of the merits of that particular ground of review. Ultimately, having regard to the then-recent judgment of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] 91 ALJR 936, the learned primary judge concluded that this ground of review was without merit.
The appellant’s argument in the court below involved an alleged uncritical translation by the Tribunal of conclusions reached in respect of the claim for a protection visa into conclusions reached in respect of whether there was, nonetheless, a basis for complimentary protection. As framed, the ground of appeal does not in terms engage with the particular challenge reflected in Ground 2 of the judicial review application considered in the Federal Circuit Court. That ground had a very particular focus in the asserted failure to consider an integer. In contrast, the ground of appeal raises the more threshold issue of a failure to consider at all an integer component of the claim for protection as made.
Very fairly, the Minister did not, as well he might have, object to the ground of appeal on the basis that to advance it would require leave because it raised an issue not before the Federal Circuit Court. Instead, the Minister met the ground on its merits. There is substance in the Minister’s submission that the ground of appeal lacks necessary particularity as to the component integer not considered. In seeking to give that particularity, the appellant really did nothing more than to highlight particular aspects of evidence which he submitted ought to have been differently found by the Tribunal.
Looking at the claim for protection as made, particularly in the statutory declaration to which I have made reference and the Tribunal’s resultant reasons, my view is that the Tribunal did consider all of the component integers of the appellant’s protection visa claim. It necessarily follows that, even had this particular jurisdictional error been the subject of Ground 2 or some other ground before the Federal Circuit Court, there was no error to be found on the basis of a failure by the Tribunal to consider a component integer of the protection visa claim. What follows from the foregoing is that the appeal must be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 27 June 2018
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