BVM16 v Minister for Immigration and Border Protection
[2018] FCA 381
•9 March 2018
FEDERAL COURT OF AUSTRALIA
BVM16 v Minister for Immigration and Border Protection [2018] FCA 381
Appeal from: BVM16 v Minister for Immigration and Anor [2016] FCCA 3183 File number: QUD 927 of 2016 Judge: LOGAN J Date of judgment: 9 March 2018 Catchwords: MIGRATION – appeal against Federal Circuit Court – failure to use letters relating to matters found true by the IAA – delay awaiting decision in SZTAL v Minister for Immigration and Border Protection – brief detention on return insufficient to enact complimentary protection – dismissed. Legislation: Migration Act 1958 (Cth) ss 473CB, 473DB, Pt 7AA Cases cited: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 Date of hearing: 9 March 2018 Date of last submissions: 6 March 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Ms A Wheatley Solicitor for the Respondents: Clayton Utz ORDERS
QUD 927 of 2016 BETWEEN: BVM16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondents 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 a citizen of Sri Lanka. He is an ethnic Tamil and a Hindu. He came to Australia on 17 August 2012, by boat. On 10 September 2015, he made application under the Migration Act 1958 (Cth) (the Act) for that type of visa known as a Safe Haven Enterprise visa. On 20 May 2016, a delegate of the Minister for Immigration and Border Protection refused that visa application.
That refusal decision came to be reviewed by the Immigration Assessment Authority (the Authority) under Pt 7AA of the Act. On 24 June 2016, the Authority affirmed the Minister’s delegate’s decision not to grant to the appellant a Safe Haven Enterprise visa. The appellant then applied to the Federal Circuit Court for the judicial review of that decision. On 22 November 2016, that court dismissed with costs that judicial review application. It is from that order of dismissal that the appellant now appeals to this Court.
The grounds of appeal are these:
1.The Honorable trial judge Jarrett J erred in law by failing to consider documents central and critical to the application on its face value
a. Where the question arose on the validity of the documents barring the simple inquiry that can be made by the Tribunal to establish the authenticity (at least of the MP’s and the Political party Secretary’s letter) where the details of contact were given, the Applicant had no other avenue open to him to establish the authenticity of the documents as any other documents submitted to establish the authenticity would also be subject to its authenticity. This makes it imperative that the Tribunal has at least some documentary evidence to support rejection of the documents which it did not.
b. Where letters from the political party not type written as a reason for questioning its validity, and failing to consider that the party small offices in remote areas of Sri Lanka often had no great office facilities such as typist to be called at will and handwritten letters endorsed by the name stamp of the writer is common practice.
c. As a result the Applicant was not given fair and due consideration of the documents related to the Application, in the making of the decision.
The reasons for judgment of the learned primary judge do not, in terms, make any reference to the letters to which the appellant refers in his grounds of appeal. Neither for that matter is there any reference in the Authority’s reasons explicitly to those letters.
As I understand it, the appellant’s contention is that in that, absence of reference by the Authority, there is a jurisdictional error, the existence of which ought to have been, but was not, found in the court below. A more precise way of formulating the point sought to be made by the appellant might be that the absence of explicit reference to the letters demonstrated that the Authority had not discharged its statutory function of reviewing the Minister’s delegate’s decision on the basis of the material provided under s 473CB as required by s 473DB of the Act. That would be because those letters formed part of that material.
The appellant had claimed in support of his visa application that he had fled Sri Lanka in August 2012 because he was targeted by members of the Karuna group, which is a Tamil paramilitary group. That targeting, he claimed, was due to the involvement of one of his brothers with the LTTE’s political wing. He claimed that it was not safe for him to live in Jaffna or in Trincomalee because he had attracted adverse attention whilst he resided in Jaffna and because he occasionally travelled to Trincomalee to visit his parents. He also made reference to the brother in question having gone missing and to the fact that he resembled that missing brother in appearance.
There is explicit reference to the letters in question in the reasons of the Minister’s delegate. The letters in question, if their authenticity is accepted, support two aspects of the appellant’s claim firstly, that the brother in question did go missing, which is a fact expressly mentioned in the letters, and, secondly, by necessary inference from context, that that brother and his going missing had something to do with that brother’s involvement with the LTTE.
The Authority’s task was to review the decision made by the Minister’s delegate in respect of the visa application, not the reasons for that decision. Of course, it would have been permissible for the Authority to have stated something to the effect, “I accept a particular fact in the same way and for the same reasons as the delegate.” So it is not impossible to conceive of cases where there might be an incorporation, by reference, by the Authority, of a reference to particular material by a delegate. That is not, though, what occurred in this case; the Authority made no reference at all to the letters. But such a reference was not, in the particular circumstances of this case, necessary. That is because the particular propositions, which, if the letters were accepted, were supported by them were found, in any event, in the appellant’s favour by the Authority on the basis, it seems, of other material before the Authority.
Thus, the Authority accepted that the appellant’s brother had been an LTTE volunteer and a member of its political wing: see paras 10 and 13 of the Authority’s reasons. The Authority also accepted that this brother had gone missing and that the appellant had had no contact with him after 2007: see para 16 of the Authority’s reasons. Further, the Authority accepted, having regard to the appellant’s evidence in his visa application and a related visa interview, as well as contemporaneous country information concerning the position in Sri Lanka, that, following a bomb explosion in the Valvettithurai Marketplace in 2008, the appellant had been arrested and detained for up to three days. The Authority further accepted that, at that time, he had been subjected to beatings and released on condition that he regularly report to the army camp at that place: see para 24 of the Authority’s reasons.
What followed thereafter in the Authority’s reasons was a very searching examination by reference to the material before it of the basis of the appellant’s visa application claim. This culminated in the Authority reaching the following conclusion, as a sequel to acceptance, that the appellant had been detained and physically mistreated by the TMVP in September 2010. I should interpolate that the Authority found that the Karuna Group was the original name of the Tamil People’s Liberation Tigers, or TMVP. The Authority concluded, at para 77:
77.The applicant was not detailed again by the TMVP in the not quite two years between his release and his leaving Sri Lanka. Similarly, the TMVP has not returned to the applicant’s parents’ home since he left in 2012. As such, I conclude the TMVP no longer has an adverse interest in the applicant or his brother. I find that if he is returned to Sri Lanka, the chance of harm of the applicant by the TMVP is remote.
This finding informed the Authority’s absence of satisfaction in respect of the statutory criteria for a Safe Haven Enterprise visa as well as, in conjunction with country information as to the treatment of returned, unsuccessful visa applicants in Sri Lanka, the fate of the complementary protection assessment.
The learned primary judge, though he did not in terms, refer to the letters, proceeded on the correct understanding that the propositions for which they stood in the claim for the visa had been accepted by the Authority. His Honour, in effect, found that the Authority had done nothing more or less than thoroughly consider on the merits the integers of the appellant’s visa application as made and had not misused the country information which formed part of the material before the Authority.
The complaint, in respect of the absence of reference to the letters, does not appear to have been expressly raised before his Honour but, even if it had been, the result could not have been affected. That is because, as I have observed already, the propositions for which those letters stood, if their authenticity were accepted, were already accepted features of the appellant’s claim in the proceedings before the Authority.
For completeness, I should mention that the listing of this appeal was deferred, in the course of the Court’s management of appeals, because of an issue raised in a then pending High Court appeal in relation to the content of intention to cause humiliation in the context of the consideration of complementary protection (SZTAL v Minister for Immigration and Border Protection). Judgment in respect of that appeal was handed down in the High Court on 6 September 2017; see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.
Having regard to the way in which the Authority made findings as to an absence of satisfaction regarding an intention to inflict pain or suffering or extreme humiliation as a feature of the appellant’s likely brief detention upon return to Sri Lanka: see para 98 of the Authority’s reasons, there could be no prospect of success, in light of the views expressed by the majority in SZTAL, in permitting, exceptionally, any amendment of the grounds of appeal to raise a point alleging error of law in relation to intention by the Authority.
The Minister quite properly adverted to SZTAL in his written submissions. As it happened, the appellant did not advance or seek permission to advance any ground relating to an intention. I mention the point only to indicate why it was that the hearing of the appeal was deferred and so that it is patent that the point has not escaped attention.
That deferral goes some way to explain the lapse of six years which has occurred between the appellant’s arrival by boat and today, to which he made reference in the course of his submissions. Given those submissions, I should record that delay, by itself, is not a basis either for the granting of the visa sought, much less for the allowance of the appeal.
For these reasons the appeal must be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 21 March 2018
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