FEDERAL COURT OF AUSTRALIA

BRA16 v Minister for Immigration and border Protection [2018] FCA 127

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

GILMOUR J:

1    I made orders on 17 February 2018 at the conclusion of the hearing of this appeal dismissing the appeal with costs. The following are my reasons for doing so.

2    This is an appeal from a decision of the Federal Circuit Court (Judgment) dismissing the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA): BRA16 v Minister for Immigration & Anor [2016] FCCA 2855.

3    On 24 June 2016, the IAA affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), not to grant the appellant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV). The decision was affirmed because the IAA found that the appellant did not meet the requirements of the definition of ‘refugee’ in s 5H(1) of the Migration Act 1958 (Cth) (Act) and did not meet the criteria under ss 36(2)(a) or (2)(aa) of the Act.

4    This issue in the present appeal, which is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) is whether the primary judge fell into appealable error in exercising the Federal Circuit Court of Australia’s original jurisdiction under s 476 of the Act in dismissing the appellant’s claim that the IAA had fallen into jurisdictional error. The appellant relies broadly on a ground of appeal asserting jurisdictional error by the Minister in failing to consider all integers of his claim. This ground of appeal does not reveal an appealable error on the part of the primary judge. Accordingly, for the reasons which follow, the appeal should be dismissed.

Background

5    The appellant is a national of Sri Lanka, who entered Australia as an unauthorised maritime arrival on 27 August 2012.

6    The appellant attended interviews with officers in the Minister’s department (Department) on 31 August 2012 and 16 September 2012. On 30 August 2013, the appellant made an application for a Protection (Class XA) visa. That application was rendered invalid by reason of ss 46A(2) and/or 91K of the Act.

7    On 9 September 2015, the appellant was notified that the Minister had agreed to exercise his power under s 46A(2) to permit him to make a valid application for, relevantly, a SHEV.

8    The appellant lodged an application with the Department for a SHEV on 26 October 2015 together with a copy of a statutory declaration dated 15 August 2013, which he had made in support of his protection visa application, and an addendum dated 23 October 2015.

9    On 18 May 2016, a delegate of the Minister made a decision to refuse to grant a SHEV to the appellant. On 19 May 2016, the Minister referred the delegate's decision, being a fast track reviewable decision, to the IAA pursuant to s 473CA of the Act.

10    The appellant, who is a citizen of Sri Lanka, claimed to fear harm if he were returned to Sri Lanka at the hands of certain Sinhalese men who threatened him and his father while they worked as fishermen in Jaffna. In particular, the appellant claimed to fear harm because of his Tamil ethnicity, because of his imputed political opinion of being a supporter/member of the LTTE, and membership of the particular social group comprising ‘failed Tamil asylum seekers who departed Sri Lanka illegally’.

11    The appellant’s case may be broadly summarised as follows:

(a)    The appellant is a Tamil and a Hindu from the Northern Province of Sri Lanka and was born in the Jaffna district.

(b)    In July 2012, while working as fishermen in the Jaffna district, the appellant and his father were approached by Sinhalese fishermen who threatened to harm him and other Tamil fishermen if they did not vacate the area. The appellant confronted the men and told them that his father had the appropriate documentation to employ fishermen and work in the area.

(c)    The Sinhalese men threatened the appellant for having spoken up and told him that he would be killed if he got involved. The appellant did not report the incident to the police as he feared that his problems would only get worse.

(d)    Following this incident, the appellant’s father arranged for his departure from Sri Lanka.

(e)    The appellant fears that he will be harmed or killed by the Sinhalese men who had threatened him. The appellant also believes he is at risk of being imprisoned by the Sri Lankan authorities for having illegally departed Sri Lanka.

The IAA’s reasons for decision

12    On 7 June 2016, the appellant provided the following to the IAA:

(a)    written submissions dated 7 June 2016 which addressed the delegate's findings;

(b)    the appellant's Sri Lankan birth certificate, identity card and the first page of his passport;

(c)    a statutory declaration made by the appellant on 7 June 2016;

(d)    a fisherman's licence issued in Jaffna;

(e)    an undated letter from the United National Party; and

(f)    a certificate of completion of the General Certificate of Education Ordinary Level examinations dated 5 September 2012.

13    The IAA affirmed the delegate's decision on 24 June 2016.

14    The IAA rejected the appellant's claims to fear persecution at the hands of the Sinhalese men to which he referred in his evidence and submissions, by reason of his Tamil ethnicity, or by reason of his having illegally departed Sri Lanka or being a failed Tamil asylum seeker. Accordingly, the IAA found that the appellant did not meet the definition of ‘refugee’ in s 5H(1) of the Act.

15    The IAA considered whether the appellant’s claims gave rise to a real risk of significant harm, enlivening Australia’s protection obligations, and found that the appellant was not a person to whom Australia owed complementary protection under s 36(2A) of the Act.

The primary judge’s reasons

16    In his application filed on 4 July 2016 in the Federal Circuit Court of Australia, the appellant raised the following grounds (without alteration):

Grounds of application

(1)    applicant is a genuine refugee as per Migration Act 1958.

(2)    applicant will be persecuted as per s 5J(1) of Migration Act if returned.

(3)    applicant is personally targeted for his previous incident with influential Sinhala men.

17    The appellant filed two affidavits dated 4 July 2016 and 8 August 2016 in support of his application. The former relevantly contained a submission in which it was contended that the IAA failed to have regard to country information and the "personal statement" which the appellant provided to the IAA on 7 June 2016. The latter relevantly contained a submission in which it was contended that the IAA failed to have regard to the same personal statement and the statutory declaration made by the appellant on 7 June 2016.

18    The primary judge rejected the appellant's grounds of review on the basis that they failed to identify any jurisdictional error in the IAA's decision and, accordingly, dismissed the application: Judgment at [45]–[46]. His Honour also concluded that the personal statement and the statutory declaration annexed to the appellant's affidavits were considered by the IAA: Judgment at [19]. Later, at [42], the primary judge considered the appellant's written submissions annexed to his affidavits but determined that they constituted an appeal going to the merits. Finally, at [43], the primary judge rejected the appellant's criticism of the IAA that it had not considered some of the country information given to it by him. However, his Honour did not accept that the IAA had misconstrued s 473DD of the Act, at [44].

The appeal

19    The appellant's notice of appeal contains the following ground and particulars (without alteration):

The Federal Circuit court failed to find, in respect of the Respondent, on 7 November 2016, that the Tribunal declined its jurisdiction to me on the basis of grounds stated in my Federal Circuit Court Application.

The particulars are: Ground one

The Respondent erred in law, with the error being a jurisdictional error, in failing to consider all integers of my claims.

I am a refugee as per migration Act 1958.

I will be persecuted as per s 5J(1) of the Migration Act is returned

I am personally targeted for my previous incident with influential Sinhala men.

Particulars

Please refer to my Federal Circuit Court application filed with your registry in which I have stated the grounds and the particulars clearly. I still rely on it.

20    The appellant did not file any written submissions. He declined to make any oral submissions in chief or in reply.

21    The ‘Particulars’ accordingly are those which were before the primary judge and which are set out above at [16].

22    It is self-evident that these do not identify any appealable error on the part of the primary judge. They are not particulars in any meaningful sense. The appeal ought to be dismissed for this reason alone. Nonetheless I will revisit what was before the primary judge.

23    The appellant had asserted that the IAA had made a jurisdictional error by not taking into account those items of country information that it listed in its reasons. The reasons which the IAA gave in relation to this information was as follows:

This information was not before the delegate at the time the decision was made and I consider this to be 'new information'. During the SHEV interview the delegate advised the applicant that he could provide any further information to her prior to the decision being made. I note the country information provided all pre-dates the delegate's decision however no reasons have been provided as to why this information was not and could not have been provided to the delegate or why it may be considered credible or personal information. I am not satisfied there are exceptional circumstances to justify the consideration of the information.

(emphasis added)

24    Section 473DD of the Act deals with the consideration of new information as follows:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

25    It is apparent from the IAA’s reasons that it did take into account not only whether the country information met the requirements of ss 473DD(b)(i) and (ii), but also whether for the purposes of s 473DD(a) there existed exceptional circumstances to justify considering that information. As the Minister submits, this is not a case where jurisdictional errors were made of the kind previously identified by this Court in, for example, Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [112] and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [44]. Here, the IAA did consider whether the country information comprised ‘credible or personal information’. Plainly, the country information was not ‘personal’. It was information of a general kind.

26    Even if the IAA had made an error in respect of its consideration of the matters described in s 473DD(b), any error could not be jurisdictional, as a finding adverse to the appellant was made in respect of s 473DD(a). The chapeau to s 473DD imposes a prohibition on the consideration of new information. That prohibition can only be displaced if the requirements of both ss 473DD(a) and (b) can be satisfied. The word ‘and’ separating subparas (a) and (b) is conjunctive. The position is not that new information given by a referred applicant can be considered if either s 473DD(a) or s 473DD(b) is met. Indeed, as the Minister correctly submits, the Minister's submission is consistent with BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [36] where White J proceeded upon the assumption that the Authority had misconstrued s 473DD(a) (as his Honour later held at [46]-[47]). It is also consistent with the Full Court's observation at [46] in CHF16.

27    These proceedings were adjourned pending the delivery of judgment by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936. In circumstances where that appeal was dismissed, no question arises as to the correctness of the IAA's complementary protection findings.

Conclusion

28    For these reasons, the appeal will be dismissed and the appellant ordered to pay the Minister’s costs, to be taxed if not agreed.

Associate:

Dated:    21 February 2018