BTM16 v Minister for Immigration and Border Protection
[2019] FCA 1468
•6 September 2019
FEDERAL COURT OF AUSTRALIA
BTM16 v Minister for Immigration and Border Protection [2019] FCA 1468
Appeal from: BTM16 v Minister for Immigration & Anor [2018] FCCA 3392 File number: NSD 2345 of 2018 Judge: REEVES J Date of judgment: 6 September 2019 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court – where the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) – where the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Protection (Class XA) visa – appeal dismissed Legislation: Migration Act 1958 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases cited: BTM16 v Minister for Immigration & Anor [2018] FCCA 3392
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
Date of hearing: 23 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms M Donald of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 2345 of 2018 BETWEEN: BTM16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
6 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The notice of appeal filed on 18 December 2018 is dismissed.
2.The appellant is to pay the first respondent’s costs to be taxed failing agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 28 November 2018 (see BTM16 v Minister for Immigration & Anor [2018] FCCA 3392 (BTM16)). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of a delegate of the Minister for Immigration and Border Protection (the Minister), as the first respondent was then known, not to grant the appellant a Protection (Class XA) visa.
FACTUAL CONTEXT
The appellant, a citizen of Pakistan, arrived in Australia on 29 December 2012 as the holder of a temporary business visa. On 9 January 2013, he applied for the protection visa mentioned above. The appellant’s claims, as set out in his visa application, revolved around his fear of harm as a Shi’a Hazara Muslim in a predominantly Sunni country, including from anti-Shi’a militants such as the extremist group Sipah-e-Sahaba (SES). The appellant claimed that his father and two of his brothers were killed by militants and that he was kidnapped and tortured by the SES, and forced to convert to the Sunni faith.
The appellant attended an interview with the Minister’s delegate (the delegate) on 30 May 2014. In that interview, he asserted that he was an ethnic Punjabi and not of Hazara ethnicity, as he had claimed in his protection visa application. The claims the appellant made to the delegate during that interview were set out in the primary judge’s reasons (BTM16 at [6]) as follows:
•The [appellant] attended a Shi’a Imambargah called Saudia Mosambel on Multan Road in Lahore.
•He is an ethnic Punjabi, not ethnic Hazara (as claimed in his written statement).
•The [appellant] lived with his mother and siblings in Lahore.
•Two of the [appellant’s] brothers passed away over 10 to 15 years ago, and following his father’s death. He does not have any proof of their deaths such as death certificates.
•Another brother - Muhammad Adnan arrived in Australia (on a business visa) together with the [appellant] in December 2012 and also applied for PV. He is currently living in Mission Beach.
•Following the [appellant’s] father’s death in a bomb blast, the [appellant] and his family started a real estate business.
•The [appellant] was around 11 years old when his father died in a bomb blast during an Ashura celebration.
•Sipah-e-Sahaba demanded 50 Lakh Rupees from the [appellant] as they thought he was a landlord.
•The [appellant] has been kidnapped by the Taliban (and / or Sipah e Sahaba) before.
•The [appellant’s] father was the Secretary of a Shi’a group named TNFJ, organising meetings and “everything” for Shi ’a people. He does not have any evidence of his father’s position in the group.
•The [appellant’s] brother’s deaths were not investigated by the Police.
•The Sipah-e-Sahaba demanded that the [appellant] and his family provide the 50 Lakhs Rupee otherwise they would kill his whole family.
•The [appellant’s] family used to be a wealthy family.
(Errors in original; italics in original)
After the delegate refused the appellant’s application, he applied for a merits review of that decision before the Tribunal. When the Tribunal affirmed the delegate’s decision, he then applied to the Federal Circuit Court of Australia for a judicial review of that decision. As is already mentioned above, the primary judge dismissed his application on 28 November 2018.
GROUNDS OF APPEAL
The appellant’s notice of appeal contained two grounds, as follows:
1.The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the [appellant] claim and ignoring the aspect of persecution in Pakistan and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2.The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal].
(Errors in original)
Neither of these grounds was raised before the primary judge. The appellant therefore requires leave to raise them for the first time in this appeal. In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134, Madgwick J (with whom Conti J agreed) set out the following non-exhaustive list of considerations bearing on the grant of such leave (at [166]):
1)Do the new legal arguments have a reasonable prospect of success?
2)Is there an acceptable explanation of why they were not raised below?
3)How much dislocation to the Court and efficient use of judicial sitting time is really involved?
4)What is at stake in the case for the appellant?
5)Will the resolution of the issues raised have any importance beyond the case at hand?
6)Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?
7)If so, can it be justly and practicably cured?
8)If not, where, in all the circumstances, do the interests of justice lie?
THE CONTENTIONS
Perhaps unsurprisingly, the appellant, who was self-represented in this appeal, was, unable to provide an explanation as to why these grounds of appeal were not raised before the primary judge (item 2) above). Neither was he able to explain how these new grounds were of such merit that they have reasonable prospects of success (item 1) above). The appellant did not file any written submissions in support of his appeal and, in his oral submissions, he simply claimed that everything he had told the Tribunal was the truth and that he would be killed if he were to return to Pakistan.
The Minister opposed leave being given to raise these new grounds of appeal, essentially on the basis that they both lacked merit. In relation to ground of appeal 1, the Minister submitted:
18… in light of the appellant’s inconsistent and vague evidence, the Tribunal was not satisfied that he was a credible witness and rejected his claim to be of Hazara ethnicity and his related claims of past harm. Further, and in light of country information indicating that most Pakistanis were able to practice their religion freely, the Tribunal was not satisfied that he faced a real chance of future harm. These findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, and there was no error on the part of the primary Judge in failing to so hold.
19The contention that the Tribunal “ignored” the considerations under s.91R of the Act is also without merit. The Tribunal’s finding that the [appellant] would not face persecution in Pakistan was the consequence of it rejecting the underlying factual bases of the appellant’s claims to fear harm. The Tribunal’s reasoning does not disclose a misapprehension as to the meaning of s.91R of the Act, and its conclusions as to the likelihood that the appellant would suffer harm in Pakistan were open to it. No jurisdictional error arose on the Tribunal’s reasoning, and no appellable error results from the primary Judge in not holding otherwise.
(Footnotes omitted; emphasis in original)
In relation to ground of appeal 2, the Minister submitted:
… the primary Judge was correct to conclude that no jurisdictional error arose in circumstances where the Tribunal expressly stated that it understood the definition of significant harm and engaged in an orthodox assessment of the complementary protection criteria ...
CONSIDERATION
It is convenient to begin by noting that, although s 91R of the Migration Act 1958 (Cth) (the Act) was repealed by the time of the Tribunal’s decision (20 June 2016), the transitional provisions contained in Schedule 5, Part 4 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amending Act) provided that the amendments to the Act repealing s 91R only applied to visa applications made on or after the day upon which Schedule 5, Part 4, item 28 commenced. That day was fixed to be 16 December 2014 (items 3 and 22 of the table in s 2 of the Amending Act). Accordingly, since the appellant’s visa application was made on 9 January 2013, s 91R of the Act continued to apply to it.
Having regard to that statutory background, I agree with the Minister’s submissions that the Tribunal’s reasons do not reveal any misapprehension as to the meaning, or application, of s 91R of the Act. I also agree with the Minister’s submissions that the adverse credibility findings the Tribunal made and the conclusions it reached to reject the appellant’s claims to fear harm in Pakistan were open to it on the evidence and materials before it. Furthermore, I consider the Tribunal’s reasons “provide an evident and intelligible justification” for those conclusions.
For his part, although the primary judge was not called on to examine the Tribunal’s reasons by reference to the present proposed grounds of appeal, his Honour did review those reasons in addressing the particular criticisms of them raised before him. Having done so, his Honour concluded that the Tribunal had not failed to consider the integers of the appellant’s claims that were the subject of those criticisms (see BTM16 at [30]). Accordingly, I do not consider there is any merit in either of the appellant’s proposed grounds of appeal for which he seeks leave.
CONCLUSION
For these reasons, it is not appropriate to give the appellant leave to raise his proposed new grounds of appeal for the first time in this appeal. Consequently, the appellant’s notice of appeal must be dismissed with costs.
Accordingly, the orders will be:
1. The notice of appeal filed 18 December 2018 is dismissed.
2. The appellant pay the first respondent’s costs to be taxed failing agreement.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 6 September 2019
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