FEDERAL COURT OF AUSTRALIA
BRV15 v Minister for Immigration and Border Protection [2018] FCA 285
Appeal from: BRV15 v Minister for Immigration and Border Protection [2017] FCCA 131 File number: VID 131 of 2017 Judge: GRIFFITHS J Date of judgment: 9 March 2018 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether the primary judge erred in finding that the AAT did not fail to consider the applicant’s claim on the basis on which it was actually made, and/or drew a material inference that was arbitrary, unreasonable and not open to it on the evidence – whether the primary judge erred in the interpretation and/or application of the well-foundedness requirement – whether the primary judge erred by finding the AAT had asked itself the correct legal question and/or applied a correct proposition of law in respect of the applicant’s claims concerning his religious practice of animal sacrifice – whether the primary judge engaged in an impermissible merits review – appeal dismissed, with costs Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
SZTAL v Minister for Immigration and Protection [2017] HCA 34; 91 ALJR 936
Tisdall v Webber [2011] FCAFC 76; 193 FCR 260
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; 105 FCR 548
Date of hearing: 9 March 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 57 Counsel for the Appellant: Mr J P W Maloney Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr N Wood Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 131 of 2017 BETWEEN: BRV15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The interlocutory application dated 20 February 2017 be dismissed.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment is reported as BRV15 v Minister for Immigration and Border Protection [2017] FCCA 131.
By an interlocutory application dated 20 February 2017, the appellant sought leave to rely on two additional grounds (grounds 6 and 7) in his notice of appeal dated 20 February 2017.
On 4 April 2017, the then docket judge adjourned the hearing of both the interlocutory application and the appeal pending the…
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- BRV15 v Minister for Immigration and Border Protection [2018] FCA 285
- Case
- [2018] FCA 285
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CaseChat Overview and Summary
The case of BRV15 v Minister for Immigration and Border Protection involved a Sri Lankan citizen, a Tamil and a Hindu, who arrived in Australia as an illegal maritime arrival. He claimed to have left Sri Lanka due to harassment and discrimination as a Tamil shop owner, including allegations of assault and theft by Sinhalese people, including police and navy officers. The delegate rejected the appellant's claims, leading to a review by the Administrative Appeals Tribunal (AAT), which also rejected his claims for refugee status and complementary protection. The appellant sought judicial review in the Federal Circuit Court of Australia (FCCA), which was subsequently appealed to the Federal Court of Australia. The appellant argued that the AAT failed to properly consider his claims and asked the wrong legal questions regarding his religious practice of animal sacrifice.
The primary legal issues in the case included whether the primary judge erred in finding that the AAT did not fail to consider the applicant’s claim on the basis upon which it was actually made, and/or drew a material inference that was arbitrary, unreasonable and not open to it on the evidence. Another issue was whether the primary judge erred in the interpretation and/or application of the well-foundedness requirement. Additionally, the court had to determine if the primary judge erred by finding the AAT had asked itself the correct legal question and/or applied a correct proposition of law in respect of the applicant’s claims concerning his religious practice of animal sacrifice. The court also needed to assess whether the primary judge engaged in an impermissible merits review.
The Federal Court of Australia dismissed the appeal and found that the primary judge did not err in her findings. The court held that the AAT had considered the appellant’s claims on the basis upon which they were made and did not draw any arbitrary or unreasonable inferences. The court found that the AAT had applied the correct legal principles in evaluating the appellant's claims for refugee status and complementary protection. The court further held that the primary judge did not engage in an impermissible merits review. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
The primary legal issues in the case included whether the primary judge erred in finding that the AAT did not fail to consider the applicant’s claim on the basis upon which it was actually made, and/or drew a material inference that was arbitrary, unreasonable and not open to it on the evidence. Another issue was whether the primary judge erred in the interpretation and/or application of the well-foundedness requirement. Additionally, the court had to determine if the primary judge erred by finding the AAT had asked itself the correct legal question and/or applied a correct proposition of law in respect of the applicant’s claims concerning his religious practice of animal sacrifice. The court also needed to assess whether the primary judge engaged in an impermissible merits review.
The Federal Court of Australia dismissed the appeal and found that the primary judge did not err in her findings. The court held that the AAT had considered the appellant’s claims on the basis upon which they were made and did not draw any arbitrary or unreasonable inferences. The court found that the AAT had applied the correct legal principles in evaluating the appellant's claims for refugee status and complementary protection. The court further held that the primary judge did not engage in an impermissible merits review. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
1. The interlocutory application dated 20 February 2017 be dismissed.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
On 4 April 2017, the then docket judge adjourned the hearing of both the interlocutory application and the appeal pending the determination of the appeal to the High Court of Australia from the judgment of the Full Court of this Court in SZTAL v Minister for Immigration and Border Protection (S272/2016) and in a related matter (S273/2016). On 6 September 2017, the High Court dismissed both appeals: see SZTAL v Minister for Immigration and Protection [2017] HCA 34; 91 ALJR 936. Proposed grounds 6 and 7 in the notice of appeal were not pressed. Accordingly, the interlocutory application dated 20 February 2017 should be dismissed.Summary of background facts The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity and is a Hindu. He arrived in Australia on 24 June 2012 as an illegal maritime arrival. He claimed that he had left Sri Lanka because of problems he faced as a Tamil shop owner. He said that Tamils have always suffered harassment and discrimination at the hands of Sinhalese. In a statutory declaration dated 26 July 2013 which the appellant provided to the Department, he claimed that the navy, police, and Sinhalese people came to his shop asking for money and that they took merchandise and refused to pay for it. He said that he was assaulted and his tooth was broken. He claimed that he was not able to complain to the authorities as they did not take any action and that he could no longer tolerate the situation. He claimed that pressure was being applied on Tamil shopkeepers so that they would have to close their shops and the Singhalese could then take them over. The delegate accepted that the appellant had worked in a textile shop in his home village, that he had suffered poor treatment by some Sinhalese police and navy officers and that Sri Lankan authorities were not interested in him for any real or perceived links to the LTTE. However, the delegate did not accept that the appellant owned his own textile shop, that he had been assaulted by people and had his tooth broken or that he had suffered any persecution at the hands of the police or the navy. The delegate also rejected the appellant’s claims to fear persecution because of his status as a Tamil failed asylum seeker. For similar reasons, the delegate rejected the appellant’s claim for complementary protection. The appellant sought a review by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (AAT)). He had legal representation in the AAT. The appellant participated in the AAT hearing conducted on 19 January 2015, with the assistance of an interpreter. A person from the appellant’s legal representative’s firm also attended the hearing and provided a post-hearing legal submission dated 2 February 2015 in response to concerns raised by the AAT at the hearing. On 24 February 2015, the appellant was invited to respond to a recent DFAT report on Sri Lanka. By an email dated 16 March 2015, the appellant’s lawyer informed the AAT that no comments would be provided in respect of that document.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
For similar reasons, the AAT explained why it rejected the appellant’s claim for complementary protection. Primary judge’s reasons for judgment summarised On 20 August 2015, the appellant sought judicial review in the FCCA of the AAT’s decision. In his amended application for judicial review, he raised two grounds. The first was that, by disbelieving the appellant’s claim that he was harassed and attacked in his shop because he was “apparently running a successful business”, the AAT had failed to consider the appellant’s claim on the basis upon which it was actually made and/or drew a material inference that was arbitrary, unreasonable and not open to it on the evidence. The second ground of judicial review was that the AAT asked itself the wrong legal question by failing to deal with the appellant’s claim in relation to his religious practice of ritual animal sacrifice, and by failing to address how the appellant would conduct his religious practice if he were returned to Sri Lanka. The appellant was represented by counsel both below in the FCCA and on the appeal to this Court. In relation to ground 1 of the amended application for judicial review, the primary judge referred to the appellant’s statutory declaration dated 26 July 2013, which is summarised at [4] above. The primary judge noted at [4] in her Honour’s reasons for decision that the delegate accepted that the appellant was having problems with people not paying for goods in his shop. Her Honour also noted that the delegate found that the discrimination and treatment experienced by the appellant because he is a Tamil was not at a level that affected his ability to live comfortably if he were to return to Sri Lanka. That was primarily because of the delegate’s finding that the appellant’s own evidence demonstrated that he had been able to earn an acceptable livelihood and was able to live comfortably (see her Honour’s reasons for judgment at [5]). The primary judge set out at [6] the AAT’s findings on the appellant’s ability to subsist, including the appellant’s response to the AAT’s proposition that he appeared to be able to live comfortably in Sri Lanka. The AAT found that because he was apparently running a successful business in Sri Lanka, it did not accept that the appellant was being “continuously attacked” in the way he claimed in his statutory declaration and at the AAT hearing. Although the AAT accepted that he had had a tooth broken, it found that this was not for a Convention reason. Similarly, while it accepted that the appellant and other shopkeepers experienced problems with shoplifting, it did not accept his claim that Tamil shopowners were specifically targeted or that these problems were so serious as to amount to persecution within the meaning of s 91R(1)(b) of the Migration Act 1958 (Cth) (the Act). The primary judge rejected the appellant’s claim in support of ground 1 that it was never part of his case that the harassment and attacks affected the economic viability of his business. In doing so, the primary judge referred to at [8] an extract from the delegate’s reasons for decision where the delegate stated that the appellant had “emphasised that his treatment as a Tamil impacts on [his] ability to earn a livelihood through his shop”.
Ratio Decidendi
Legal Principle Established
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