FEDERAL COURT OF AUSTRALIA

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to 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

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The Refugee Review Tribunal (the Tribunal) has found that the appellant is a citizen of Sri Lanka. On 23 August 2012, having arrived in Australia without a visa earlier, the appellant applied to the Minister for Immigration and Border Protection, the first respondent to this appeal, for that class of visa under the Migration Act 1958 (Cth) (the Act) known as a Protection (Class XA) visa (Protection visa). On 12 September 2013, a delegate of the Minister refused to grant such a visa to the appellant.

2    The appellant then sought, on 18 September 2013, the review of the Minister’s delegate’s decision by the Tribunal. On 12 March 2015, for reasons which the Tribunal furnished in writing, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a Protection visa. The appellant then applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. In the interval between when the Tribunal made its decision and when the judicial review application was heard and determined in the Federal Circuit Court, the role of the Tribunal was, by statutory amendment, assumed by another Tribunal, the Administrative Appeals Tribunal. That other Tribunal was appropriately substituted as a party before the Federal Circuit Court and has also been joined as a respondent to the present appeal. Also appropriately, that other Tribunal has adopted the stance of making a submitting appearance only in respect of the appeal.

3    On 27 January 2016 the Federal Circuit Court dismissed with costs the appellant’s judicial review application. It is from that judgment that the appellant now appeals to this Court.

4    There are two grounds of appeal. They are:

Ground one

The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.

    Particulars

The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane.

Ground two

1.    The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424A & 424AA.

Particulars

The Respondent did not raise/or put to me in writing part of parts of the adverse decision for me to comment in writing.

The Federal Circuit Court Judge erred in the judgment as the Judge failed to find that the Respondent erred in law when the Respondent had reviewed my review application.

5    Each of these grounds specifies a basis of challenge which was not present in the only ground of review pleaded in the judicial review application before the Federal Circuit Court. In that court, the only pleaded ground of review was “that the decision of the second respondent, the Refugee Review Tribunal, was affected by legal error.” Referring to a judgment of this Court, WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (Siopis J), in respect of a similarly pleaded ground of review, his Honour reached the conclusion that this was not, because of its generality, a meaningful ground of review. Accordingly, his Honour dismissed, on that basis alone, the judicial review application: see [29] – [35] of his Honour’s reasons for judgment. Yesterday I reached a like view in respect of an identically pleaded ground of review in the context of an application for leave to appeal: see BHK15 v Minister for Immigration and Border Protection [2016] FCA 569.

6    There was no error in the dismissal of the judicial review application on the basis specified by the learned Federal Circuit Court judge.

7    His Honour, for surely what must be regarded as reasons of humanity and in the interests of justice, nonetheless made additional observations about the adequacy in law of the conclusion reached by the Tribunal on the facts. He concluded that the appellant had not been able to identify any jurisdictional error in the Tribunal’s decision and that the appellant’s submissions were all aimed at trying to get the court to embark on an impermissible merits review of the Tribunal’s decision. His Honour quite correctly reminded himself by reference to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272, that this was something that a court tasked with deciding questions of jurisdictional error alone should not do.

8    In relation to Protection visa matters, it is not only the case that this Court likewise has no jurisdiction to embark upon a consideration of the merits of whether in fact a claim to refugee status or complimentary protection should be submitted. It is also the case that this Court exercises an appellate, not an original, judicial review jurisdiction. Exceptionally, where a jurisdictional error is patent in respect of a decision of the Tribunal, a ground of appeal may be taken even though there was no related ground of review pleaded before the Federal Circuit Court. For that reason, I propose, albeit briefly, to address each of the grounds of appeal, even though they were not grounds of review before the Federal Circuit Court.

9    As developed in the appellant’s oral submissions, ground 1 was really a solicitation for me, impermissibly, to conduct a form of merits review. To that end, the appellant sought to tender a bundle of recent news reports concerning events in Sri Lanka, particularly as they related to members of the Tamil community.

10    I marked this as a bundle for identification, but upheld an objection by the Minister that they were inadmissible in relation to an appeal of this kind.

11    The Tribunal summarised the basis of the claim made by the appellant for a Protection visa at [3] of its reasons:

In summary the applicant claimed he was involved in humanitarian activities with the Foundation of Coexistence (FCE) (2006-2009) and the Organisations Councils for Peace and Coexistence (OCPC) (2009-2011) in Batticaloa. He was threatened and targeted a number of times by persons affiliated with the government to cease his work. He ceased work twice (in 2009 and 2011) and went into hiding but continued to receive phone threats. He was chased by two men in the vegetable market in March 2012 and escaped but sustained serious head injuries on his forehead while doing so.

12    The appellant also made reference to a private matter concerning his appearance in the course of evidence before the Tribunal. The Tribunal’s reasons disclose that this was particularly taken into account in the Tribunal’s assessment of what might happen to the appellant if he were returned to Sri Lanka. It does not appear to have been put forward as an integer of the claim for a Protection visa, but rather a circumstance which might aggravate what would otherwise be the appellant’s experience upon return to Sri Lanka and the period of detention which might follow.

13    The Tribunal’s reasons disclose a very close engagement indeed by the Tribunal with the merits of the appellant’s claim for a Protection visa. And the same applies in relation to complementary protection. The appellant had the benefit of representation before the Tribunal. It was for him to put forward such material as he could to support the acceptance of his claim on the merits. As it happened, the Tribunal, for reasons which are logically expressed, was not satisfied that the appellant was a person to whom Australia owed a protection obligation under the Refugee Convention. That entailed an assessment by the Tribunal of the appellant’s credibility.

14    On the material before the Tribunal and on the basis of the reasons expressed by the Tribunal, that absence of satisfaction and conclusion as to credibility must be conceded to have been reasonably open. That, in essence, was a view reached in the remarks additionally made by the learned Federal Circuit Court judge. I share his Honour’s view as to the Tribunal’s decision being one reasonably open. The importance to the legitimacy of judicial review of judicial deference to the separate function consigned to the Tribunal cannot be over-emphasised: see in particular Attorney-General (NSW) v Quin (1990) 170 CLR 1, particularly at 35 and 36 per Brennan J.

15    The other ground of appeal is meaningful and draws attention to particular procedures which the Tribunal was obliged to follow if occasion arose, as was quite properly conceded on behalf of the Minister. A failure to follow those procedures would give rise to a jurisdictional error, such that the Tribunal’s decision would have to be quashed. But regard to such evidence as there is as to the Tribunal’s procedures, as disclosed in the Tribunal’s reasons for decision and the correspondence in the Appeal Book, discloses that the Tribunal observed the requirements of both ss 424A and 424AA of the Act. Indeed, insofar as generic information concerning the position in Sri Lanka was put to the appellant, the Tribunal may well have gone further than required by the Act. It is hardly to be criticised, much less is jurisdictional error to be found, for such procedurally fair conduct.

16    The private matter to which the appellant referred was taken into account both in the context of the claim for refugee status and in relation to complementary protection. The views reached by the Tribunal were views reasonably open. They are not to be disturbed on over-zealous judicial review, much less an over-zealous exercise of appellate jurisdiction. It follows that the appeal must be dismissed.

Associate:

Dated:    20 May 2016