FEDERAL COURT OF AUSTRALIA

BFF15 v Minister for Immigration and Border Protection [2018] FCA 279

Appeal from:

BFF15 v Minister for Immigration [2017] FCCA 2640

File number:

NSD 1858 of 2017

Judge:

BROMWICH J

Date of judgment:

2 March 2018

Legislation:

Migration Act 1958 (Cth) ss 46A,  91R(1)(b), (c)

Cases cited:

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Date of hearing:

2 March 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

20

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent:

Mr M Wiese of Clayton Utz Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1858 of 2017

BETWEEN:

BFF15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

2 MARCH 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the sum of $3,100.

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

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal, now a part of the Administrative Appeals Tribunal, the second respondent. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a protection visa to the appellant.

2    The appellant is from Sri Lanka. On 2 July 2012, he arrived on a boat at Christmas Island. On 22 November 2012, he was granted a bridging visa, which has since been renewed. On 26 November 2012, he applied for a protection visa. He was able to do so because, on 16 October 2012, the Minister lifted the bar under s 46A of the Migration Act 1958 (Cth) on him making such an application. On 26 November 2012, he applied for a protection visa. Attached to his protection visa application was a statement of his claims in a statutory declaration and supporting documents.

3    On 21 May 2013, the appellant was interviewed by a delegate of the Minister. On 7 September 2013, the delegate refused the grant of a protection visa. The delegate’s reasons for that refusal were detailed and comprehensive.

4    The delegate was satisfied that the harm that the appellant said he feared was serious harm and systematic and discriminatory conduct as required by s 91R(1)(b) and (c) of the Migration Act, and was therefore capable of amounting to persecution. However, none of those fears were assessed as being well-founded, in the sense that there was any real chance that they would be realised, applying the well-established principles set out by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The delegate’s assessment was substantially based on country information from a wide range of international agencies and other sources, as applied forensically to the appellant’s particular facts and circumstances as found and accepted.

5    The delegate concluded that the appellant did not have a well-founded fear of persecution for any reason in the Refugees Convention, as modified in its application in Australia by ss 91R and 91S of the Migration Act. The same assessment of risk was applied to the appellant’s claim for complementary protection, with the delegate not being satisfied that there was a real risk that the appellant would be subjected to significant harm.

6    On 11 October 2013, the appellant applied to the Tribunal for merits review of the delegate’s decision. The appellant appeared before the Tribunal on 27 March 2015 to give evidence and present arguments in support of his review application, an earlier hearing on 11 March 2015 having been adjourned to that later date because of the death of the appellant’s father on 27 January 2015. The reasons for his father’s death ended up being of some importance to the appellant’s judicial review application and his appeal to this Court.

7    On 16 June 2015, the Tribunal affirmed the delegate’s decision. The Tribunal’s reasons are lengthy and detailed, running to 162 paragraphs over 34 pages, with an additional five pages summarising relevant independent country information addressing various issues raised by the appellant’s claims. Key aspects of the appellant’s evidence were not accepted as being true or otherwise credible. The reasoning in reaching those conclusions is detailed and comprehensive, including the way in which a wide range of issues was raised with the appellant, testing his account of events as to detail and accuracy, and for areas of exaggeration. The Tribunal reached similar conclusions to the delegate both as to the appellant’s refugee claims and as to his complementary protection claims, albeit with important differences in reasoning and detail.

8    On 10 July 2015, the appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. The hearing before the primary judge took place on 10 October 2017. His Honour dismissed the application the same day, with ex tempore reasons.

9    The primary judge summarised the appellant’s claims succinctly as follows (omitting court book page references):

4.    In summary, the [appellant] claimed to fear harm due to discrimination as a Tamil ([5]). He claimed that he and his family and other Tamils in his village, had been targeted by the Sri Lankan Army, whom he says were involved in the deaths and abductions of various friends and family members ([8] to [21]). He claimed that since 2011, the army have used “Grease Men” to “harass and torture” people in his village ([31] to [37]). He also claimed to be targeted by the Sri Lankan police and the Criminal Investigation Department (“the CID”), after they suspected him of being involved in people smuggling ([38] to [53]).

5.    Of particular relevance to the application before the Court, is the [appellant’s] claim that the Sri Lankan Army, on behalf of the government, had threatened the [appellant] and his family due to his father protesting against the government’s proposal to build a Buddhist temple in a playground owned by the Hindu Temple Association.

6.    The [appellant] claimed his father was treasurer of that association. He claimed that other members of the association have been shot and killed for protesting ([22] to [30]). The [appellant’s] father was killed in January 2015, and at the hearing before the Tribunal, the [appellant] claimed that he believed the Sri Lankan police were responsible for his father’s death due to his involvement in the Hindu Temple Association and the related protests against the building of the Buddhist temple ([50]).

10    The primary judge summarised the Tribunal’s treatment of the key claim grounding the judicial review application before his Honour, which is maintained on appeal, at [10] (omitting court book page references):

The Tribunal affirmed the delegate’s decision on 16 June 2015. In relation to the [appellant’s] claims relating to his father’s involvement with the Hindu Temple Association, the Tribunal noted “a number of inconsistencies” (see [49] to [57]). The Tribunal specifically considered the [appellant’s] father’s death certificate. It accepted that the [appellant’s] father died in January 2015. However, it found that nothing on the death certificate indicated that his death was a result of his involvement with the Hindu Temple Association ([58]).

11    The paragraphs of the Tribunal’s reasons that were challenged in the judicial review proceedings before the primary judge were as follows:

49.    It is the [appellant’s] claim that he will face harm on return as his father is Treasurer of the Hindu Temple Association. He claims in his statement that in 2007 the Government wanted to build a Buddhist temple on the playground which belonged to the Hindu Temple association. He claims members of the Hindu Temple Association which included his father protested. He claims the President and Secretary were shot by the Army and died. He claims his father is Treasurer and he spoke to the Army saying the land cannot be given. He claims as a result the army would come at night and harass his father saying that if the association did not give up the land they would harm his father and their family. At the hearing before me he claimed that about 3 to 4 months before his departure in June 2012 the police and CID came looking for his father and when he was not there, so they tortured him (the [appellant]). When asked to explain what he meant by this, he said they pushed him (the [appellant]) around, and he said he was assaulted. He claims this is why he tried to depart the first time in May 2012, three weeks before he successfully departed the second time in mid June 2012. He claims he is of ongoing interest to the police and CID because of his father’s involvement in the Hindu Temple Association and opposing the building of the Buddhist temple. He claims when they came looking for his father and he was not there they would interrogate him and this was happening three months before his departure.

58.    In making this finding the Tribunal has considered the death certificates submitted by the [appellant]. While it accepts that the [appellant’s] father died in January 2015 as indicated by the [appellant] there is nothing on those certificates to indicate his death was a result of his involvement in the local Hindu temple, as a member or Treasurer, or because he opposed or protested against the use of the land to build a Buddhist temple. I therefore do not place any weight on these certificates as evidence that the [appellant’s] father was killed for the reasons the [appellant] claims.

12    The ground of review before the primary judge as to those passages, and reproduced in his Honour’s reasons at [12] was as follows:

1. The Tribunal erred in making an irrelevant consideration in weighing up the evidence of the [appellant’s] father’s death certificate

Particulars

a. At #49 the [appellant] squarely raised that other Hindu Temple Association office bearers had been killed. The Tribunal did not question that fact.

b. At #58 the Tribunal found that because the death certificate did not provide evidence to indicate the motivation for the [appellant’s] father’s death then the death certificate is irrelevant to the [appellant’s] claim about those motivations. The tribunal did not consider if the cause of death was relevant.

c. Death Certificates only provide evidence of the cause of death not the motivation behind any implied actors in the death.

13    The primary judge’s reasoning in rejecting that ground of review was as follows:

14.    Particular “a” to ground one is obviously focused on [49] of the Tribunal’s decision record. The central assertion of that particular is that the Tribunal did not “question [the] fact” that “Hindu Temple Association [office] bearers had been killed”.

15.    As the Minister, correctly in my view submits, this is a mischaracterisation of what the Tribunal set out at [49] of its decision record. It is clear on any plain, let alone a fair reading, that what the Tribunal set out at [49], was a recitation of the [appellant’s] claims in relation to his father’s involvement with the Hindu Temple Association. The Tribunal’s references to other office bearers having been killed at [49], cannot be properly, or fairly, characterised as findings made by the Tribunal. Rather, the references set out the [appellant’s] claims which the Tribunal then subsequently considered. The particular, at best, seeks impermissible merits review.

16.    Particular “b” takes issue with what is said to be the Tribunal’s finding that the cause of the [appellant’s] father’s death was not relevant. Again, this is not, with respect to the [appellant] and his “friend” who drafted the ground for him, a fair or accurate representation of what the Tribunal has done.

17.    The Tribunal rejected the [appellant’s] claims in relation to his father, and it gave reasons and made findings reasonably open to it. The Tribunal specifically considered the [appellant’s] father’s death certificate. In the circumstances, it was reasonably open to the Tribunal to find that the certificate did not indicate the motivation for the [appellant’s] father’s death. That is, the motivation of any other person in relation to the [appellant’s] father’s death. In that light, it was reasonably open to the Tribunal to place no weight on this document, as clearly it did not provide any support for the claim as to any motivation in relation to the death of the [appellant’s] father.

18.    It is of note that this was the only document that the [appellant] provided to the Tribunal in relation to the claims relating to his father, and more specifically, as to the claimed cause of his father’s death. While the [appellant] confirmed before the Court that he had given other documents to the Tribunal, the death certificate was the only document in relation to his father’s death. I note that the Tribunal reported that at the hearing, the [appellant] agreed that the death certificate did not set out the motivation for the death of his father ([40]). Indeed, particular “c” to the ground makes the very point that the death certificate only provides evidence of the [appellant’s] father’s death, not the motivation behind any implied actors in his death.

14    The sole ground in the notice of appeal before this Court is as follows:

1.    His Honour erred when he did not find that the Tribunal erred in making an irrelevant consideration in weighing up the evidence of the father’s death certificate.

15    Not being either a lawyer or legally represented, the appellant did not comply with directions to file written submissions. Nor did he make any meaningful oral submissions, which is understandable for the same reasons. When asked at the hearing of the appeal what he wished to say about any error on the part of the Tribunal or the primary judge, the appellant said “I could not find any error, I appealed with the help of my friend”.

16    The Minister filed and relied upon written submissions which summarised the appellant’s claims, the Tribunal’s treatment of those claims, and the primary judge’s reasons, in appropriately neutral terms. The Minister submitted that the primary judge was correct to reject that ground of review for the reasons that his Honour gave. The Minister submitted that the appellant had not advanced any basis for reaching a different conclusion in relation to the same point advanced on appeal. The Minister pointed out that the Tribunal had accepted that the appellant’s father had died, but found at [58], reproduced above, that there was nothing in the certificates to indicate the connection between a Refugees Convention motivation and his father’s death.

17    The Minister’s submissions should be accepted, for the simple reason that, as the primary judge found, the appellant’s argument relies upon a mischaracterisation of what the Tribunal found. The Tribunal did no more than say that the sole documentary basis relied upon by the appellant to attach an indirect Refugees Convention reason for his father’s death did not achieve that purpose. The documents before the Tribunal went no further than establishing that the appellant’s father had died. The fact of the death of the appellant’s father was accepted by the Tribunal, but not the asserted reason. There was no factual or legal error in the Tribunal’s reasoning, let alone any jurisdictional error. The primary judge would have erred to have reached any other conclusion.

18    The appeal must therefore be dismissed with costs.

19    In the event that the appeal was dismissed, the Minister applied for a lump sum costs order. The Minister’s application was made by way of an affidavit of Mr Mark Clive Weise, affirmed 27 February 2018. That affidavit was served on the appellant earlier in the week and he apparently had a copy in court. The appellant said that he had no submissions to make about that affidavit or that application. Mr Weises affidavit details the costs incurred and reasonably anticipated to be incurred in these proceedings up to the conclusion of the hearing of the appeal and delivery of judgment. I am satisfied that it is appropriate to make the lump sum costs order in the sum of $3,100, being about 65% of the Minister’s overall professional costs in this matter.

20    Accordingly the appellant is to pay the first respondent costs fixed in the sum of $3,100.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

Associate:

Dated:    9 March 2018