FEDERAL COURT OF AUSTRALIA

BRW15 v Minister for Immigration and Border Protection [2018] FCA 321

Appeal from:

BRW15 v Minister for Immigration & Anor [2016] FCCA 2470

File number:

NSD 1604 of 2016

Judge:

GLEESON J

Date of judgment:

2 March 2018

Date of publication of reasons:

21 March 2018

Catchwords:

MIGRATION whether Federal Circuit Court of Australia (“FCCA”) judge erred in misinterpreting s 5(1) of the Migration Act 1958 (Cth) – whether FCCA judge erred in failing to find that the Administrative Appeals Tribunal erred on consideration grounds – appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 5

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405

Date of hearing:

2 March 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

23

Counsel for the Appellant:

The appellant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitor for the Respondents:

Mills Oakley Lawyers

ORDERS

NSD 1604 of 2016

BETWEEN:

BRW15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

2 March 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT (Revised from Transcript)

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (“AAT”): BRW15 v Minister for Immigration & Anor [2016] FCCA 2470 (“FCCA judgment”). In its decision, the AAT affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the appellant a protection visa.

2    The appellant’s notice of appeal contains two grounds of appeal which are not entirely clear but which I understood to be:

(1)    The FCCA judge erred in failing to find that the AAT “misconstrued or misapplied the words “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Migration Act 1958 (Cth).

(2)    The FCCA judge should have found that the AAT failed to consider the appellant’s claim of fear owing to his being an activist with an administrative role with the Liberation Tigers of Tamil Eelam (“LTTE”).

3    The appellant was not legally represented on the appeal and did not file written submissions. He appeared at the hearing of the appeal with the assistance of a Tamil interpreter. He said that the AAT wrongly said that he did not do any work, by which I understood him to mean work for the LTTE. The appellant also said that he has received a threat, from a man now living Australia, with a brother who is a high ranking officer in the Criminal Investigation Department (“CID”). The man in Australia attempted to cross into army controlled areas, without a pass, and the appellant failed to give him a pass. The threat is that the man in Australia will cause him danger, through his elder brother, if he returns to Sri Lanka.

Background to appeal

4    The appellant arrived in Australia from Sri Lanka in August 2012 and lodged an application for a protection visa in December 2012.

5    A detailed summary of the appellant’s claims for protection, prepared by the AAT, is set out at [4] of the FCCA judge’s reasons. Among other things, the summary refers to the appellant’s claim to have worked in the civilian administration of an LTTE office, known as the traffic pass or travel management office, handing out passes for families travelling between Killinochchi to Vavuniya.

FCCA reasons

6    The FCCA judge analysed the AAT’s decision at [6] to [13] of his Honour’s reasons. At [7] of the FCCA judge’s reasons, his Honour recorded that the AAT did not find the appellant to be a credible witness and also found that he had fabricated his claims.

7    The FCCA judge then considered the appellant’s application for leave to rely on a proposed amended application. His Honour rejected the six proposed grounds of review.

8    The first five grounds of review concerned:

(1)    whether the AAT failed to consider a claim to fear harm on return to Sri Lanka ([15] and [16] of the FCCA judge’s reasons);

(2)    whether the AAT failed to consider a claim based on the appellant’s membership of a particular social group ([17] of the FCCA judge’s reasons);

(3)    whether the AAT failed to address the appellant’s claim to fear harm arising from his participation in festivities encouraging Tamils to object to the discrimination of the Sri Lankan governments and attended rallies ([18] of the FCCA judge’s reasons);

(4)    whether the AAT erred by relying exclusively or too extensively on country information to make credit findings ([19] to [23] of the FCCA judge’s reasons);

(5)    whether the AAT denied the appellant procedural fairness because it did not give him an opportunity to address the possibility that it might not make the same findings made by an earlier tribunal, whose decision was set aside by the FCCA ([24]-[26] of the FCCA judge’s reasons).

9    These five grounds are not related to the matters raised by the notice of appeal to this Court.

10    The final ground concerned the possibility that the appellant might face significant harm because of his illegal departure from Sri Lanka. The FCCA judge addressed this issue, at [27] of his Honour’s reasons, as follows:

The second ground concerns the way in which the Tribunal dealt with the possibility that the applicant might face significant harm because of his illegal departure from Sri Lanka and, in particular, in light of the prison conditions in Sri Lanka. Counsel for the applicant conceded at the hearing that that ground was inconsistent with the decision of the Full Court in SZTAL but only raised it as a formal matter in light of the possibility that that decision might be set aside if special leave were granted to appeal … the decision. For those reasons I am bound to apply the decision in SZTAL to the facts of this case and the second ground must be rejected.

11    In September 2017, the High Court of Australia dismissed an appeal from the Full Court’s decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 (“SZTAL”).

Appeal to this court

Ground 1

12    The full terms of ground 1 are:

1.    The learned trial judge Smith J erred in finding that the decision of the Tribunal involved jurisdictional error, as the Tribunal misconstrued or misapplied the words “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act. His Honour thereby erred (SZUOL v Minister for Immigration & Anor [2016] FCCA 1980 at [50] – [72]).

Particulars

a.    The Appellant had made the claims that there would be intention on the parts of the authorities to cause harm.

b.    The Applicant had claimed arbitrary deprivation of life. His Honour should have found that the Tribunal did not consider the claims (arbitrary deprivation of liberty.

c.    Considering the circumstances of the Applicant it matches with knowledge and intention.

d.    His Honour fell into error.

13    To the extent that this ground seeks to raise the issue raised formally before the FCCA, referred to at [10] above, it must fail having regard to the High Court’s decision in SZTAL.

14    To the extent that ground 1 seeks to raise another issue, I am unable to identify it. The appellant did not say anything that explained any other interpretation of ground 1 of the notice of appeal. Accordingly, ground 1 fails.

Ground 2

15    The full terms of ground 2 are:

2.    His Honour should have found that the feared owing being activist with administrative role with LTTE whereby the Applicant’s life is under threat, constituted jurisdictional error.

Particulars

a.    His Honour should have found that the Tribunal fell into error when it failed to considered [sic] feared owing being activist with administrative role in LTTE (CB212 at [m]) as amounting to serious harm to his life and under risk.

b.    The Appellant had made claims about his administrative role with LTTE (CB 232 at [17-18]. His Honour should have found that the Tribunal did not consider the claims.

c.    His Honour fell into error.

16    The AAT’s findings concerning the appellant’s claimed administrative role with the LTTE were not the subject of the grounds of review pressed before the FCCA. Accordingly, there is no basis for the contention that the FCCA judge erred by failing to make a finding concerning that aspect of the appellants claims.

17    In any event, the AAT did not fail to consider the appellant’s claims based on being an activist with an administrative role in the LTTE. At para 24 of its decision record, the AAT concluded:

The Tribunal is not satisfied that the applicant ever worked in one of the LTTE offices of the civilian administration or under its intelligence wing, as claimed; nor that he was reported to the army in 2009 for having worked for the LTTE, detained in a separate camp for a month, beaten, tortured and interrogated about his alleged LTTE work; nor that he was asked by the CID or Army officers to work with them to identify LTTE members on the basis of this work experience, thereby gaining protection from further targeting at any time while living in Sri Lanka. In the Tribunal’s view, the applicant concocted and embellished his evidence in an attempt to establish that he had significant LTTE links, which would make him of interest to the Sri Lankan authorities.

18    As to particular (a) of ground 2 in the notice of appeal, the passage at court book 212(m) is from a letter from the appellant’s then-solicitors to the Refugee Review Tribunal. The passage reads:

In addition, we are instructed that one CID officer has recently visited his home in Sri Lanka and obtained the applicant’s Australian mobile number from his wife. Subsequently, to his surprise, he received a call from a person stating that he is a police officer and wanting to know the reason why the applicant left Sri Lanka. The applicant was very afraid and disconnected the line. The call was made via Viber and the applicant states that he has the phone number registered in his mobile phone. All the above facts clearly demonstrate evidence of the fact that the applicant is of a certain profile which is of adverse interest to the Sri Lankan authorities. We submit that it clearly indicates that he falls under the UNHCR guidelines of persons suspected of certain links with the LTTE and as a Tamil activist in a minor role, attending rallies demonstrating against government discrimination against Tamils.

19    That matter was addressed and rejected at para 25 of the AAT’s decision record.

20    As to particular (b), the passage at court book 232 [17-18] is a passage from the AAT’s decision record. The fact that it is included in the decision record is an indication that it was considered by the AAT. Having read the decision of the FCCA judge and the passages from the court book referred to in ground 2 of the notice of appeal, I am not satisfied that that ground 2 has any merit.

21    Accordingly, ground 2 fails.

The appellant’s submissions to this court

22    The appellant made forceful oral submissions, particularly rejecting the AATs finding that he did not work for the LTTE and also concerning threats he has received in Australia. These are not matters that are relevant to the question for the Court in this case, which is to determine whether the FCCA judge made an appellable error.

Conclusion

23    For these reasons, the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Associate:

Dated:    21 March 2018