FEDERAL COURT OF AUSTRALIA

BBT16 v Minister for Home Affairs [2018] FCA 1225

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant is a citizen of Pakistan from Parachinar in Kurram Agency. He arrived in Australia on 5 August 2012. His application for a protection visa was refused. The refusal was affirmed by the Administrative Appeals Tribunal on 11 April 2016. He sought review in the Federal Circuit Court on the basis that part of his claim for complementary protection under s 36(2A) of the Migration Act 1958 (Cth) was not considered by the Tribunal. His review application was not upheld. He now appeals to this Court.

Appeal grounds

2    The appellant appeared on his own behalf. His grounds of appeal were expressed as follows:

The decision of the Federal Circuit Court

a.    Is affected by an error of law; and

b.    Denied me procedural fairness.

3    Expressed in those terms, the appeal grounds disclose no arguable ground of review. It is necessary to particularise some respect in which there is said to be error in the decision by the Federal Circuit Court. An appeal to this Court is by way of rehearing and the task of the Court is the correction of error. The Court does not undertake that task properly by putting the views of the judge below to one side and allowing a simple re-argument of the matter: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [22] and [30] (Allsop J, Drummond and Mansfield JJ agreeing).

4    However, as I said in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 the consequences of a failure to particularise will depend upon the circumstances: at [8]. It will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation where the appellant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground: at [9]. That is the course that I followed in this matter.

5    To adopt such a course is to be appropriately lenient in compliance with procedural requirements having regard to the fact that a litigant appears in person: Nobarani v Mariconte [2018] HCA 36 at [47]. However, the litigant must still meet the requirement to provide particulars of the grounds of appeal or review as the case may be and should be required to do so, at a minimum, orally. If the particulars are provided for the first time at the hearing, fairness may require that the respondent be afforded further time to consider the grounds once particularised.

Appellant's submissions

6    The appellant provided a letter to the Court explaining some of the factual matters relied upon by the appellant to support his application for a protection visa. I received the letter as a submission. Factual matters relating to the merits are for the Tribunal to decide. I have considered the matters in the letter, but none of those matters could found a basis for an appeal to this Court from the decision of the Federal Circuit Court.

7    One other matter was raised by the appellant in oral submissions. It concerned the Tribunal's finding that the appellant claimed before the Tribunal that six of his uncles were village elders. The appellant said that this was wrong and there was only one uncle. This was not a matter raised in the Federal Circuit Court. As to the evidence about uncles as village elders, their activities were described by the Tribunal as being advanced as reasons why, by association, he might be targeted as part of ongoing violence by extremists in his village. However, the Tribunal dealt with the appellant's claims about his uncles and alleged violence by finding that they were vague and lacking in detail. For those reasons, the claims were not accepted by the Tribunal (at para 19 of the Tribunal's reasons).

8    In those circumstances, the complaint raised concerns a factual matter that was within the jurisdiction of the Tribunal to decide. If it had been raised before the Federal Circuit Court then it is not a matter that would have provided a basis for concluding that there had been jurisdictional error. Therefore, it does not provide an arguable basis for appeal.

The ground of review advanced below

9    I have also considered the reasons of the judge below. The appellant advanced only one ground of review in the Federal Circuit Court.

10    I was informed by the appellant that he was provided with some legal assistance in preparing his ground of review before the Federal Circuit Court. Counsel for the Minister provided to me a copy of a written submission that had been provided to the judge below in support of that ground.

11    The submission made to the Federal Circuit Court was that the Tribunal, when considering complementary protection, conflated the test in relation to refugee claims made by the appellant by considering whether there was harm for a Convention reason (particularly by reason of extremist groups targeting religious minorities) when that was not part of what was required in evaluating the question of complementary protection.

12    The Tribunal reasoned in the following way when dealing with complementary protection:

(1)    It first stated, correctly, that it needed to consider whether the alternative criteria in s 36(2)(aa) of the Migration Act applied, which is stated as 'whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act';

(2)    It then listed four types of harm that had been identified by the appellant (then applicant). Significantly, each type of harm was expressed in terms that covered the same types of harm that had been raised in support of the Convention based claims made before the Tribunal. In particular, the risk of harm was expressed as arising for reasons that had been advanced as Convention reasons;

(3)    It then referred to its earlier finding that it had not accepted there to be a real risk of serious harm for Convention reasons;

(4)    It stated, correctly, that the real risk test for complementary protection and real chance test for Convention claims imposed the same standard; and

(5)    It reasoned from its rejection of harm in support of the refugee claims that there was no real risk of harm to support a claim of complementary protection.

13    By that process of reasoning the Tribunal did not fail to apply the correct legal test. Its conclusions were a consequence of the same risk of harm (including the reasons for that risk) being relied upon to support both claims. Therefore, when the Tribunal rejected that risk there was no further risk to consider when it came to complementary protection. The argument advanced for the appellant before the judge below would only have merit if there was indeed a risk that was raised and the risk was said to arise for reasons other than Convention reasons (and that matter was not separately considered by the Tribunal in the context of complementary protection).

14    The written submissions raised one matter which it contended was of that character. It related to 'generalised violence'.

15    In the course of reasoning as to the Convention claims the Tribunal referred to a Department of Foreign Affairs and Trade assessment regarding 'the risk of generalised violence'. It found that there was some level of risk to the appellant 'in the context of generalised violence'. However, it then found that 'the risk is remote' and that it 'does not accept that there is a real chance that he would be targeted for harm based on his Shia religion, his membership of a particular social group of Turi tribe from Kurram Agency or any other Convention reason' (at para 38 of the Tribunal's reasons).

16    The use of the conjunctive 'and' is important in the making of these findings. The risk is found to be both remote and also one that would not occur for a Convention reason.

17    In those circumstances, there was no finding of a risk of harm from generalised violence. Accordingly, there was no failure by the Tribunal to apply the correct legal test and properly discharge its statutory function by not considering whether there was a risk of harm through generalised violence which the appellant might suffer irrespective of his religious, ethnic and other cultural associations.

18    It follows that there was no error in the finding by her Honour below that there was no jurisdictional error arising from those matters.

Conclusion

19    For those reasons, no error has been demonstrated in the decision by the Federal Circuit Court and the appeal should be dismissed with costs.

Associate:

Dated:    16 August 2018