BWC16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BWC16 v Minister for Home Affairs [2018] FCA 1375

Appeal from: BWC16 v Minister for Immigration & Anor [2018] FCCA 890
File number: WAD 145 of 2018
Judge: THAWLEY J
Date of judgment: 5 September 2018
Catchwords:

MIGRATION – appeal from Federal Circuit Court of Australia – fast track reviewable decision of the Immigration Assessment Authority – where appellant claimed to fear harm due to his membership of the Tamil United Liberation Front (TULF) party – where Authority found as a fact that the appellant had stated that he was unaware of the TULF party’s history – where the appellant made no statement to this effect – whether Authority’s finding was a critical finding made without probative evidence giving rise to jurisdictional error

MIGRATION – whether Authority’s finding that the appellant had failed to demonstrate sufficient knowledge of the TULF party’s history from 1976 to 2001 was arbitrary and formed on the basis of illogical reasoning – where appellant had not been fairly tested on the TULF party’s history – where Authority did not consider why a person in the appellant’s position would be expected to know the historical events identified, or why the appellant should have demonstrated knowledge of them without having been asked about them – where Authority’s finding of insufficient knowledge was based on the incorrect finding of fact that the appellant stated he was unaware of the TULF party’s history

MIGRATON – whether adverse credibility finding affected by jurisdictional error in circumstances where the Authority had: (1) erred in finding that the appellant had stated he was unaware of the party’s history; and (2) adopted illogical reasoning when considering whether the appellant had demonstrated sufficient knowledge of the TULF party’s history from 1976 to 2001

Legislation: Migration Act 1958 (Cth) ss 36(2), 473CB; Pt 7AA
Cases cited:

CKC16 v Minister for Immigration and Border Protection [2018] FCA 126

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577

MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436

SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232

SZSMR v Minister for Immigration and Border Protection [2015] FCA 655

SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

Date of hearing: 24 August 2018
Date of last submissions: 3 September 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 65
Counsel for the Appellant: Mr M G S Crowley
Solicitor for the Appellant: AUM Legal
Counsel for the Respondents: Ms S J Oliver
Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS

WAD 145 of 2018
BETWEEN:

BWC16

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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Details
Case
[2018] FCA 1375
Decision Date

CaseChat Overview and Summary

In the case of BWC16 v Minister for Home Affairs, the appellant, BWC16, challenged the decision of the Immigration Assessment Authority (IAA) which had found his claim for protection under the Migration Act 1958 (Cth) to be not credible. The appellant alleged that he feared harm due to his membership of the Tamil United Liberation Front (TULF) party, however, the IAA concluded that he had failed to demonstrate sufficient knowledge of the party’s history from 1976 to 2001, rendering his claim incredible. The Federal Circuit Court dismissed the appeal, but the appellant sought further review by the High Court of Australia.

The central issue before the court was whether the IAA's finding that the appellant did not demonstrate sufficient knowledge of the TULF party’s history from 1976 to 2001 was a critical finding made without probative evidence, thereby resulting in a jurisdictional error. The court was also required to determine if the IAA’s reasoning was illogical and whether it had fairly tested the appellant on the TULF party’s history. Furthermore, the court examined if the adverse credibility finding was affected by the jurisdictional error in the IAA's consideration of the appellant's knowledge of the party’s history.

The court held that the IAA's finding was indeed a critical finding made without probative evidence, constituting a jurisdictional error. The IAA incorrectly found that the appellant had stated he was unaware of the TULF party’s history, a fact the appellant did not make. Additionally, the IAA’s reasoning was deemed illogical because it did not consider why the appellant should have demonstrated knowledge of the party’s history without being asked about it, nor did it consider the appellant’s position as a shopkeeper with a rudimentary education. The adverse credibility finding was also affected by the jurisdictional error in the IAA's assessment of the appellant's knowledge. Consequently, the appeal was allowed, and the decision of the Federal Circuit Court was set aside.

The court ordered the decision of 1 July 2018 to be quashed and directed the Minister to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law. Additionally, the Minister was ordered to pay the appellant’s costs, including the costs of the appeal to be determined as a lump sum. The court directed the parties to file any agreed proposed minute of orders fixing a lump sum for the appellant's costs and set timelines for the filing of affidavits and responses if an agreement could not be reached.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof:

(a) there issue absolute in the first instance:

(i) a writ of certiorari directed to the second respondent quashing the decision of 1 July 2018; and

(ii) a writ of mandamus directed to the second respondent to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law.

(b) order that the first respondent pay the applicant’s costs;

3. The first respondent pay the appellant’s costs of the appeal to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4. Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant’s costs.

5. In the absence of any agreement pursuant to paragraph 4 of these orders, within 21 days the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

6. Within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

7. In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ultimately, the delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations under ss 36(2)(a) or (aa) of the Act. Accordingly, she notified the appellant of her decision to refuse the appellant’s SHEV application on 5 May 2016. AUTHORITY’S DECISION The delegate’s decision was automatically referred to the Authority for review under Part 7AA of the Act on 6 May 2018. In conducting its review, the Authority had regard to the material referred to it by the Secretary of the Department of Immigration and Border Protection under s 473CB of the Act. It is common ground that the sound recording of the appellant’s SHEV interview with the delegate on 20 November 2015 formed a part of the Part 7AA “review material”. At the hearing of the appeal, I granted leave for the parties to file a document containing an agreed transcript of the sound recording of the SHEV interview, assuming the parties could so agree. The circumstances for this are referred to in more detail below. An agreed transcript containing a record of what was said by the interviewing officer (O), the appellant (A) and the interpreter (INT) was filed on 3 September 2018. Relevantly, the transcript showed the following exchange between the delegate and the appellant:O: So with your statement of claims you’ve put in reasons here in regards to the events that were leading up to you departing Sri Lanka. And that was in regards to your involvement with the Tamil United Liberation Front. So what I’d like you to do for starters, is to give me a history of the actual Tamil party, what it stands for and your knowledge about that actual political party.A:It’s a political party. Ok… This party, the Tamil United Liberation Front (TULF – T-U-L-F) works for the welfare of the Tamils who have been affected by internal conflict in the country for a long time.INT:That’s everything or you want any more information on that? O:Ahh, yeh, so, is that …INT:That’s the policy of the party.O: Ok so…INT:The welfare of the party… the members who have been affected by internal conflict.O: Ok, so can you tell me a bit about when it was formed?A: I don’t know. I don’t know.O: Ok, and, um, where abouts was the party started?A: Jaffna.O: Jaffna. And how many members does it have?A: There’s only 1 person left in the party as at today. There were 45 members then, with the support of the people around.O: And so, ahh, did they win… So you’re not sure when they were formed and there was only 45 people in the party. Have they won any local elections?A: Yes they have won.O: Which elections? A: The local council elections.O: Which ones?A: Valikamam (V-A-L-I-K-A-M-A-M). Yes, yes, Valikamam. O: And what year was that?A: The election that was held in 2006 with a win.O: Ok and so when did you join the party?A: 2005… and continued to be in the party.O: Who was its leader?A: His name is V. I’ll spell it for you, A-N-A-N-A-N-T-H-A-S-A-N-K-A-R-I.O: Ok so can you just tell me also what were the party’s policies? What were their initiatives?A: For service to the, um mass, for service to the people.O: Can you provide me with a bit more detail with regards to their social policies or party initiatives?A: Resettlement of the displaced people into their own homes. The party would hold discussions with the government to get the army out of the residence of people at their own area. Does this make sense? O:Yes.A:The party would take it upon itself to have discussions with the related authorities to do some sort of service to the people.O: What sort of service?A: Helping and assisting the senior citizens, taking them to hospitals, sending them home, shopping. The party reps would hold talks with the army. If anyone was being tortured or detained, etc., and help them in whatever way we can.O: Ok and that, was that assisting local people or members of your party that were…?A: The party is for the people.O: For the people. That means anybody that is in detention or being threatened by the army, your party was representing them?A: The assistance is open to the public, not only for the members.

Ratio Decidendi

Legal Principle Established

The notice of appeal advanced a single ground of appeal. It was in substantially the same form as the ground advanced before the Federal Circuit Court:The Federal Circuit Court erred in not finding that the Immigration Assessment Authority’s (IAA) decision was vitiated by jurisdictional error where the IAA, in reasoning that because the Appellant did not reflect the ‘history and milestones’ of the Tamil United Liberation Front (Tamil United Liberation Front) from 1976 to 2001 described in country information, the Appellant’s claim to membership of the TULF was not credible, and that a letter purporting to be from the TULF corroborating the Appellant’s membership could be given little or no weight, went about its task irrationally or illogically, or denied the Appellant procedural fairness.Particulars1.1 The axis of the Appellant’s claim was that he had been peripherally associated with the TULF from 2001, but an active member of the TULF from 2005.1.2 The Appellant was asked at interview a range of questions about the TULF, to which the Appellant gave an account of the TULF’s contemporaneous purpose, leadership, composition and activities, for the period in which he claimed to have been involved. To the question ‘when was [the TULF] formed?’, the Appellant answered he did not know.1.3 The IAA found the claim to be not credible because the Appellant did not demonstrate ‘knowledge of the party’s history or any of its milestones [from 1976 to 2001], to the extent that would be expected of someone who was involved’ in the TULF between 2001 and 2012, where the Appellant had simply been asked, and said he did not know, when the TULF was founded.1.4 The IAA reasoned that the Appellant’s claim to membership of the TULF was not credible, that therefore a letter purporting to be from the TULF corroborating the Appellant’s claim could be given little or no weight in light of general country information that document fraud is prevalent in Sri Lanka.1.5 Where there was an account of the contemporaneous leadership, composition and activities of the TULF satisfactory to the IAA, there was no logical connection between an absence of knowledge about the ‘history and milestones’ of the TULF almost three decades before the Appellant’s claimed involvement with the group and the finding that that the Appellant had therefore fabricated his claim to TULF membership.1.6 Nor was there any evidentiary foundation for the latent premise that a person involved with the TULF would have the knowledge implicitly attributed to them by the IAA. The Appellant, a shopkeeper with a rudimentary education, did not claim to be a political historian. On the hearing of the appeal, the appellant also accepted it was a part of his case that the last sentence of A[8] of the Authority’s reasons contained a finding which was unsupported by the “review material” before the Authority: the appellant had never stated he was “unaware of the party’s history”. This matter does not appear to have been pointed out to the primary judge.