FEDERAL COURT OF AUSTRALIA

BFF17 v Minister for Immigration and Border Protection [2018] FCA 830

Appeal from:

BFF17 v Minister for Immigration and Anor [2017] FCCA 3037

File number:

NSD 2225 of 2017

Judge:

LOGAN J

Date of judgment:

16 May 2018

Catchwords:

MIGRATION – appeal against Federal Circuit Court – whether primary judge erred – whether the Immigration Assessment Authority engaged in speculation – reasonable and rational basis for predictive tasks. Held – appeal dismissed with costs.

Legislation:

Migration Act 1958 (Cth) ss  46A, 473B(c) 473D(e)

Cases cited:

S395/2002 v The Minister for Immigration and Multi-Cultural Affairs (2003) 216 CLR 473

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Date of hearing:

16 May 2018

Date of last submissions:

8 May 2018

Registry:

Queensland

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Appellant:

The appellant appeared in person with the assistance of an interpreter

Counsel for the Respondents:

Mr N Swan

Solicitor for the Respondents:

Mills Oakley Lawyers

ORDERS

NSD 2225 of 2017

BETWEEN:

BFF17

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

16 MAY 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s 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

LOGAN J:

1    The appellant is a citizen of Sri Lanka, of Tamil ethnicity. He came to Australia on 25 April 2013. It was not until 24 May 2016, that the Minister for Immigration and Border Protection (Minister), acting pursuant to s 46A of the Migration Act 1958 (Cth) (the Act) lifted a bar to the appellant applying for a protection visa. As a result, on 24 May 2016, the appellant applied to the Minister under the Act for that class of visa known as a Safe Haven Enterprise visa (Subclass 790). On 23 January 2017, a delegate of the Minister decided to refuse that visa application.

2    Thereafter, the decision of the Minister’s delegate was referred to the Immigration Assessment Authority (Authority) for review. On 8 March 2017, the Authority decided to affirm the Minister’s delegate’s decision not to grant to the appellant the visa which he sought.

3    The appellant then sought the judicial review of the Authority’s decision by the Federal Circuit Court. On 6 December 2017, for reasons given that day, that court dismissed with costs the, by then amended, application for judicial review.

4    The appellant now appeals to this Court against that order of dismissal. The grounds of appeal are as follows:

Grounds of appeal

The Federal Circuit court failed to find, in respect of the IAA (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application.

The Immigration Assessing Authority has committed a jurisdictional error in my case as it declined to exercise jurisdiction as the factual precedent for its jurisdiction does exist.

My ground: Jurisdictional error

Particulars of my grounds:

I am a Hindu Tamil, born in 1983 in Velikulam Vavuniya in the Northern Province of Sri Lanka. In 1990, at about age 7, I moved with his family to Tamil Nadu where I resided until his departure from India in March 2013. While in India, I completed schooling to Year 6 level at the government school. Since competing school, I worked as a labourer. My parents, his wife and children and siblings continue to reside in the refugee camp in Tamil Nadu and I have no extended family residing in Sri Lanka. Neither I nor any members of my family have been back to Sri Lanka to visit since 1990. Prior to leaving Sri Lanka, my family was not involved in political or pro-LTTE activities. My father experienced harassment and ill-treatment from the army on two occasions while walking down the street. On 10 March 2013 I departed India and travelled to Australia. I cannot return to India as he has been removed from the list of welfare recipients and he fears action by the Q Branch. I fear returning to Sri Lanka as I would be questioned on arrival by the CID and prosecuted for my illegal departure. There is a possibility of ill-treatment during the questioning process and I have no family members, close relatives or friends to vouch for me and bail me if detained. I fear harm from the authorities for being Tamil from the Northern Province and imputed LTTE association.

There is evidence and country information on Sri Lanka before the IAA to substantiate that a Tamil in my similar circumstances is still risk of serious harm at the hands of Sri Lankan authorities in Sri Lanka, especially on my arrival, but the IAA has declined to exercise its jurisdiction on central refugee claims.

The IAA’s decision/reasoning seems to be mere speculation and there is country information before the IAA that I am still at risk of harm on my arrival.

In addition to the above grounds, I still rely on the grounds and the particulars for the judicial review with the Federal Court of Australia.

I have no lawyer to represent me in this court.

5    I mean no disrespect to the appellant in observing that the grounds of appeal are pleaded in an unorthodox way. By that I mean, that they incorporate submissions as well as allegations of legal error. In essence, what the grounds of appeal do is to take up grounds pleaded in the amended judicial review application and allege that the primary judge should have found jurisdictional error on those bases on the part of the Authority. So much seems to me to follow from the first and penultimate paragraphs of the notice of appeal under the heading “grounds of appeal”.

6    On the basis of the findings made by the Authority, it has been a very long time since the appellant last lived in Sri Lanka. He was born in 1983. He left Sri Lanka with his parents in about 1990. The occasion for that departure is described by the Authority in para 13 of the Authority’s reasons. Suffice it to say, the Authority accepted that the appellant’s father had been subjected to harassment and ill treatment by Army officers in Sri Lanka and that this had formed the basis for his taking his family, including his young son, the appellant, to India and resettling in Tamil Nadu in 1990. Until he came to Australia, the appellant, so the Authority found, had resided as a refugee in Tamil Nadu since 1990.

7    The appellant’s claim for a protection visa was based on an asserted fear, if returned to Sri Lanka, that he would be detained on arrival, possibly interrogated and ill-treated for being a returned asylum seeker who had spent 23 years in Tamil Nadu and further or alternatively, that he would be harmed by Sri Lankan authorities for his Tamil ethnicity and a related, imputed support for and involvement with the Liberation Tigers of Tamil Eelam (LTTE).

8    This claim was expressly addressed by the Authority in a detailed way. For reasons set out in those which accompanied the notification of the Authority’s decision, the Authority was not satisfied that the appellant had a real chance of serious harm on one or more of the bases of his claim.

9    Influential in the reaching of that conclusion, as the Authority’s reasons make apparent, was a report of the Australian Department of Foreign Affairs in respect of Sri Lanka, dated 24 January 2017. That report was, in terms of s 473B(c) of the Act, “new information”. The Authority’s reasons record, at para 7, satisfaction on the part of the member concerned that there were exceptional circumstances justifying considering this new information. That new information was not information which the Authority was required to give to the appellant for the purposes of inviting him to make comments in respect of it. That is because the information in the Department of Foreign Affairs country report concerning Sri Lanka was not, specifically, about the appellant. It thus fell within the exception found in s 473D(e) of the Act.

10    The appellant appeared on his own behalf this afternoon on the hearing of the appeal. His submissions were brief but none the worse for that in terms of confirming the basis of his dissatisfaction with the Federal Circuit Court’s judgment as evident in his notice of appeal.

11    In the second paragraph of his notice of appeal, under the heading “grounds of appeal”, the appellant states that “factual precedent” for the Authority’s jurisdiction, and by this he means, I am sure, upholding his visa claim, did exist. This was a ground that he put in the Federal Circuit Court. That court, though, adopted the position that the assessment of factual merits was a matter for the Authority. It was not in error in adopting this approach.

12    I have no doubt that the appellant genuinely disagrees with the assessment of the position in Sri Lanka he would face, were he to return, made by the Authority. But within the bounds of reasonableness including providing its reasons are logically and rationally expressed, the evaluation of factual material before the Authority and the reaching of related conclusions of fact is a matter for the Authority, not the judicial branch. Conclusions of fact will be reasonable if there is material before the Authority capable of supporting those conclusions. The various country reports referred to by the Authority in its reasons, including the Department of Foreign Affairs and trade report of 24 January 2017, were capable of supporting the Authority’s factual conclusions. That being so, this particular ground of appeal, as developed, in detail, in the particulars set out in the notice of appeal, cannot be upheld.

13    There is, in the particulars part of the grounds of appeal, a reference to the Authority having engaged in “mere speculation” in relation to the risks which the appellant would face on his return. Of course, if the Authority had done no more than engage in mere speculation, and the Federal Circuit Court had not recognised this, there would be merit in this particular ground of challenge to that court’s order. The difficulty for the appellant is that the Authority’s reasons disclose that it did not engage in mere speculation. The very task, in relation to the visa sought, of assessing a real chance, in respect of persecution, entails, what some might term, informed speculation as to future events. More particularly, what the Authority had to do, and evidently, from its reasons, did, was to form an opinion about what may happen if the appellant were returned to, in this case, Sri Lanka: see as to this, S395/2002 v The Minister for Immigration and Multi-Cultural Affairs (2003) 216 CLR 473 [73]; and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 571 to 573.

14    A similar task was entailed in relation to assessing whether the appellant was entitled to complimentary protection on the basis of there being a real risk of suffering, serious or significant harm on his return to Sri Lanka.

15    In each instance, the country information, to which the Authority referred provided a reasonable and rational basis for the predictive tasks which fell to the Authority to make in relation to the visa that he sought. In short, the Authority did not engage in mere speculation. The primary judge was correct in so viewing the proceedings before the Authority as revealed by its reasons.

16    What follows from the foregoing is that the appeal must be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:    6 June 2018