FEDERAL COURT OF AUSTRALIA

MZARJ v Minister for Immigration and Border Protection [2016] FCA 1303

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal filed 21 June 2016 be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application for leave to appeal, fixed in the amount of $4,200.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

BEACH J:

1    This is an application for leave to appeal from the judgment of the Federal Circuit Court of Australia delivered on 9 June 2016. Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the primary judge dismissed an application for judicial review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), made on 12 January 2015.

2    For the reasons that follow, I have determined not to grant leave to appeal. The application must be dismissed with costs.

Background

3    The applicant is a citizen of Sri Lanka, born on 26 June 1982. He is a Hindu Tamil. He arrived in Australia on 29 June 2012 as an unauthorised maritime arrival.

4    The applicant applied for a Protection (Class XA) visa on 6 November 2012. He claimed to fear harm in Sri Lanka, due to his Tamil ethnicity. He claimed that he was a fisherman and that he had been assaulted by the navy in the past.

5    The application was refused by a delegate of the first respondent (the Minister) on 12 July 2013. The applicant then applied to the Tribunal for a review of the delegate’s decision on 18 July 2013. By facsimile dated 11 November 2013, the applicant’s then-agent provided submissions to the Tribunal. In summary, the applicant claimed to fear harm in Sri Lanka because of his Tamil race, an imputed political opinion supportive of the Liberation Tigers of Tamil Eelam (LTTE) and in opposition to the Sri Lankan government, and also because of his membership of the particular social group of failed asylum seekers returning to Sri Lanka. The applicant attended a hearing before the Tribunal on 16 December 2014.

6    On 12 January 2015, the Tribunal affirmed the decision of the delegate not to grant to the applicant a Protection (Class XA) visa.

7    The Tribunal accepted that in 2009 the applicant had been harassed by a drunk navy official. The Tribunal further accepted that the applicant was approached by navy officials in 2011 when action was taken regarding the applicant using his father’s fishing licence. The Tribunal also accepted that the navy took one to two kilograms of the applicant’s fish in 2011.

8    The Tribunal accepted that in 2008 and 2009 the applicant, as a Tamil fisherman, was required to attend a military camp and that he was asked if he supported the LTTE during round ups of Tamils. The Tribunal accepted that officials had visited the applicant’s home looking for him on two occasions, including once since leaving for Australia. The Tribunal also accepted that the military had once commandeered the applicant’s motorbike in an isolated incident.

9    The Tribunal considered the applicant to be a member of the Tamil race, yet did not accept that the applicant would face a real chance of serious harm in connection with his Tamil ethnicity. The Tribunal also considered whether the applicant would suffer serious harm as a result of an imputed pro-LTTE opinion, but concluded that he would not.

10    The Tribunal also considered the position of the applicant as a failed asylum seeker, but found that there was nothing in the applicant’s profile that would give rise to a real chance of serious harm.

11    The Tribunal considered the applicant to be someone who had unlawfully departed Sri Lanka. It accepted that the applicant would be charged with an offence and might be held in remand for several days, but that there was no evidence that there was likely to be deliberate mistreatment and that any charging of an offence would be under and applying a law of general application.

12    The Tribunal then considered the complementary protection limb. The Tribunal found that the prospect of the applicant’s fish being taken or motorcycle commandeered would not amount to extreme humiliation. Further, the Tribunal did not accept that any potential discrimination that the applicant might suffer as a Tamil would reach a level that constituted significant harm, or that he faced a real risk of degrading treatment or punishment through an inability to subsist, or a denial of social and economic rights.

13    In relation to the applicant’s illegal departure, the Tribunal accepted that the applicant was likely to be investigated on his return and may be remanded in jail for several days. The Tribunal found that the likely outcome of any criminal conviction in this respect would be a fine, but that this did not amount to significant harm. With respect to any possible detention, the Tribunal accepted evidence as to the poor nature of prison conditions. But the Tribunal did not accept that spending up to a fortnight in gaol amounted to significant harm. Further, the Tribunal found that the poor prison conditions were a product of the general state of the system, negligence and indifference. It did not accept that any requisite intentional elements were present in terms of the application of ss 36(2A)(d) and 36(2A)(e) of the Migration Act 1958 (Cth), as read in the light of the s 5(1) definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”.

Leave to appeal

14    It is not in doubt that the decision and orders of the Federal Circuit Court made on the show cause hearing were interlocutory (see r 44.12(2) of the Federal Circuit Court Rules) and that accordingly leave to appeal is required. I note for completeness that the primary judge’s reasons at [33] make an inapposite reference to “final hearing”, but nothing turns on this as it is well apparent that the show cause procedure had been invoked (see at [2]).

15    As to whether leave to appeal should be granted, it is only necessary for me to discuss the first limb of the relevant test, namely, whether the decision of the primary judge is attended with sufficient doubt as to its correctness such as to warrant the grant of leave. I am not so satisfied.

16    Before the Federal Circuit Court, the applicant sought judicial review of the Tribunal’s decision. The applicant relied on various grounds, which were expressed in his application filed on 5 February 2015 in the following terms:

(1)    The decision of the Tribunal:

(a)    is affected by an error of law; and

(b)    denied the applicant procedural fairness.

(2)    The Applicant is making an application to Victoria Legal Aid and is still awaiting the outcome of the application.

17    The primary judge convened a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules, which was held on 14 October 2015. On 9 June 2016, her Honour dismissed the applicant’s application.

18    It is not necessary to discuss her Honour’s reasons in detail. Ground (2) before her Honour is not a ground pressed before me. As to the diffuse nature of ground (1), her Honour said at [20] and [21]:

The application did not include any particulars of those grounds. The applicant did not file any written submissions, although he was required to do so by orders made by a registrar on 13 May 2015. The applicant was unable to elaborate on his grounds of review in oral submissions to this court. His oral submissions amounted to a plea for merits review, which this court is not permitted to provide. Consequently, the applicant has given no indication of any possible error of law or any possible denial of procedural fairness in the Tribunal’s decision or decision-making process.

I have been unable to detect any arguable error of law in this matter. The Tribunal invited the applicant to a hearing, which he attended. Relevant matters appear to have been put to the applicant. It does not appear that there has been any denial of procedural fairness in this case. The Tribunal appears to have considered all of the applicant’s claims, and does not appear to have taken into account any irrelevant considerations.

19    Her Honour then went on to deal with matters that the Minister had drawn to her attention, including the issue dealt with in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. It is not necessary to elaborate on such matters as those issues have not been pressed before me, although I do note that the solicitor for the Minister before me again drew this to my attention and also drew my attention to the Tribunal’s reasons at [133] relevant to this aspect.

20    Indeed, the proposed grounds of appeal pressed before me seem to bear little correlation with those raised before the primary judge.

21    The proposed grounds are in the following terms:

1.    The learned judge erred jurisdictionally in holding with the Tribunal that despite the Army or navy [having] taken dried fish from the appellant on two or three occasions that such conduct did not amount to serious harm even though the tribunal accepted there was a racial element to this treatment (at paragraph 9 of her honour’s reasons for judgment)

2.    The learned judge also erred jurisdictionally in upholding the Tribunal’s decision, even though the applicant was rounded up to undertake work in the army camp on one or two occasions and there was a racial element to their conduct, but there [is] no real chance of such conduct occurring in the future (at paragraph 10 of her honour’s reason[s] for judgment)

3.    The applicant was not represented at court below and was not familiar with the show cause hearing which he attended prior to the final hearing and the leave was sought in this regard.

22    Grounds (1) and (2) appear to misconceive paragraphs [9] and [10] of her Honour’s reasons, which merely recite the findings of the Tribunal.

23    For present purposes, I will take those proposed grounds as an assertion of jurisdictional error that the Tribunal had made concerning such matters, and that her Honour erred in failing to identify such a jurisdictional error. I will also put to one side whether such a ground of jurisdictional error was put to the primary judge.

24    Having perused the Tribunal’s reasons, particularly at [22] to [25], [29], [30], [33] to [38], [42] to [46], [69], [72] to [77] and [126], in my view no jurisdictional error is established. The only relevant classification of potential error that I need to discuss in the present context is illogicality or irrationality.

25    There is no illogicality or irrationality established in the fact finding approach taken by the Tribunal and the secondary and tertiary conclusions drawn therefrom.

26    First, the use of expressions such as illogicality or irrationality may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J. But that does not in and of itself establish jurisdictional error.

27    Second, and relatedly, the use of such expressions may be little more than a contrivance to shoehorn arguments about the merits of the Tribunal’s conclusion into the category of jurisdictional error; but that is to descend into impermissible merits review.

28    Third, differences of degree, impression and empirical judgment between the approach and reasoning of the Tribunal as compared with the opinion of a court undertaking judicial review, do not establish illogicality or irrationality. There is a high threshold. The question is whether no rational or logical decision maker could arrive at the relevant decision on the evidence before the decision maker: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J and [130] per Crennan and Bell JJ. As their Honours said at [131]:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

29    Moreover, at [135] their Honours continued:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.

30    Fourth, the weight that the Tribunal accorded to each piece of evidence was a matter for it to determine in the light of the evidence and submissions before it. Questions of weight per se are not amenable to judicial review: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Kiefel, RD Nicholson and Downes JJ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.

31    Fifth, some probative material or other logical basis for a factual finding by the Tribunal was sufficient. The Tribunal was not obliged to uncritically accept evidence or a submission made by the applicant. Indeed, a finding on credibility is the function of a primary decision maker par excellence.

32    In summary, no jurisdictional error has been identified in the fact finding approach taken by the Tribunal, the secondary factual conclusions drawn, or the identification and application of the relevant legal principles.

33    Finally, as to ground (3), which is set out in the applicant’s application for leave to appeal but not the proposed notice of appeal, the ground mistakenly refers to a show cause hearing prior to the final hearing, but there was only a show cause hearing.

34    I cannot detect any absence of procedural fairness in the course that her Honour took. No doubt a self-represented litigant with language difficulties is placed at a disadvantage in dealing with a show cause hearing, but that does not in and of itself establish any denial of procedural fairness. No other specific complaint has been identified.

CONCLUSION

35    For the foregoing reasons, leave to appeal will be refused.

Associate:

Dated: 4 November 2016