FEDERAL COURT OF AUSTRALIA

BZY15 v Minister for Immigration and Border Protection [2018] FCA 323

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court (the “FCC”) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) affirming a decision of a delegate of the first respondent (the “Minister”) to refuse the grant of a Protection visa pursuant to s 36(2)(a) or, alternatively, s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).

2    The appellant is a Tamil male from Sri Lanka who arrived in Australia in 2012. He applied for a Protection visa in November 2012 and the Minister refused to grant that visa on 26 August 2013.

PROCEEDING IN THE TRIBUNAL

3    The appellant was represented before the Tribunal by his registered migration agent. The hearing was conducted with the assistance of an interpreter. The Tribunal considered the appellant’s claims to the Department of Immigration and Citizenship (as it then was), the appellant’s pre-hearing statement, submissions prepared by the appellant’s migration agent and the oral submissions made before it.

4    Significant to these proceedings is the appellant’s claim that his uncle was a member of the Liberation Tigers of Tamil Eelam (the “LTTE”). He claimed that his uncle stayed with the appellant and his family for a period of 20-25 days; that his uncle was abducted and killed on 25 December 2014; and that the Sinhalese community was suspicious of his father, because his father and uncle had similar appearances. Based on these claims, he claims to fear harm if he returns to Sri Lanka. Further, in support of his claim to have a well-founded fear of harm, the appellant referred to incidents where he claims to have been harassed by the Sri Lankan Army (the “SLA”), various Sinhalese individuals and certain Muslim men. The appellant also claimed he is at risk of harm from Sri Lankan authorities because he left the country illegally.

5    The Tribunal found aspects of the appellant’s evidence to be of a “vague and implausible nature” and expressed concerns about his credibility. The Tribunal accepted that the appellant’s uncle had stayed with the appellant and his family for a period of 20-25 days following the end of the Sri Lankan Civil War in 2009. It was also willing to accept that the uncle may have been suspected of LTTE associations. However, the Tribunal did not accept that the appellant’s uncle was in fact a member of the LTTE. It also did not accept that the appellant would face serious or significant harm because of his father’s alleged physical similarity with the uncle.

6    As to the appellant’s claims of suffering harassment from the SLA, various Sinhalese individuals and certain Muslim men, the Tribunal accepted certain events described by the appellant but found that these were isolated incidents. As such, the Tribunal held that the risk that the appellant might face serious or significant harm in the future as result of these incidents was remote and not real.

7    Following consideration of the country information, the Tribunal found that the appellant did not face a real chance of persecution now, or in the reasonably foreseeable future, as a failed asylum seeker. The Tribunal also considered the penalty the appellant might face in Sri Lanka for his illegal departure from that country. The Tribunal found that the penalty most likely to be imposed was a fine and that the risk that the appellant would spend more than a few days in prison after his return to Sri Lanka was remote. The Tribunal did not accept that any anxiety and discomfort the appellant might face on remand for a short period of time amounted to significant harm.

8    The Tribunal identified the refugee criteria in s 36(2)(a) and the complementary protection criteria in s 36(2)(aa) of the Act and assessed the appellant against each set of criteria. The appellant did not contend that the Tribunal had mistakenly identified those criteria. Following consideration of the appellant’s claims, both separately and cumulatively, the Tribunal concluded that the appellant did not satisfy either set of criteria.

PROCEEDING IN THE FCC

9    The appellant sought judicial review in the FCC. He was represented. He relied upon a single ground – namely, that the Tribunal was in breach of s 425 of the Act which provides:

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

In amplification, the appellant contended that the Tribunal did not comply with s 425, and thus failed to provide him with procedural fairness, in three particular ways, namely –

(1)    the Tribunal failed to tell the appellant that it did not believe that the appellant’s uncle was a member of the LTTE or that it was considering making an adverse finding in relation to that matter;

(2)    the Tribunal mischaracterised the findings made by the Minister by stating that the Minister did not “accept the uncle had anything to do with the LTTE”; and

(3)    in the decision record, the Tribunal overstated and mischaracterised the “invitation” to the appellant to give evidence and present arguments that had been extended during the course of the hearing pursuant to s 425.

10    The learned primary judge rejected each contention. In relation to the first, the FCC surveyed both the decision of the Tribunal and the transcript of what had occurred below. It concluded that, taken in the context of other statements made by the Tribunal member, it was clear that the issue concerning the uncle’s alleged role with the LTTE had been sufficiently disclosed to the appellant for the purposes of s 425.

11    In relation to the second contention, the learned primary judge accepted that the Tribunal did mischaracterise the findings of the Minister as to the uncle’s membership of the LTTE. However, that failure was inconsequential because the Tribunal member had articulated his concerns about the uncle’s alleged involvement in any event. There was thus no denial of procedural fairness.

12    Finally, in relation to the third contention, the learned primary judge concluded that it really amounted to a complaint about the language used by the Tribunal which, on one view, was somewhat infelicitous. Infelicitous language did not, in the circumstances here, constitute jurisdictional error.

GROUNDS OF APPEAL

13    By Notice of Appeal dated 12 September 2017, the decision of the FCC was appealed to this Court. The notice identified three grounds of appeal –

(1)    that the FCC decision contained jurisdictional error;

(2)    that the Tribunal’s reasons were neither logical or rational;

(3)    that further grounds of appeal would be provided once the appellant had secured legal representation.

The second ground of appeal was wholly new. Over the objection of the Minister, I gave the appellant leave to rely on it.

CONSIDERATION

14    The appellant was self-represented before me and did not provide a written outline of submissions, nor did he identify any additional grounds of appeal. The Minister was represented by Mr Tran of counsel who gave, in my view, very fair and proper assistance to the appellant.

15    The general plea that the decision of the FCC was infected with jurisdictional error is rejected. It is not supported by any particular expressed error of law identifiable in the reasons of the learned primary judge. To the extent that it involves the same three matters in relation to the s 425 issue that was alive before the primary judge, in my view, the FCC was correct to decide that s 425 was complied with and that the appellant was not denied procedural fairness by the Tribunal.

16    It will be recalled that the appellant put his s 425 case in three different ways. The first ground was that the Tribunal failed to disclose to the appellant that it did not believe that his uncle was a member of the LTTE. Superficially, this complaint has some merit because the Minister had previously accepted the uncle’s membership of the LTTE and it is plain from the reasons for decision of the Tribunal that the member below had mistakenly thought otherwise.

17    However, a careful review of the transcript of the hearing in the Tribunal satisfies me that the appellant was put sufficiently on notice that his uncle’s membership of the LTTE was an issue. The governing principle here is well known. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said at par [33]:

The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.

18    At par [36], the court observed that, subject to being given notice, an appellant before the Tribunal was entitled to assume that the reasons given by the delegate for refusing to grant the application would identify the issues for the purposes of s 425. At par [38], the court then said:

When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as “implausible”, and that this conclusion was “not obviously … open on the known material”, the focus of the contention must fall upon what was “obviously … open” in the Tribunal's review. That can be identified only by having regard to “the issues arising in relation to the decision under review”. It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was “obviously … open on the known material”.

19    As to the means by which a Tribunal member should identify and then communicate the issues for decision, the court said the following (at par [47]):

First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

In an ideal world, it might have been preferable for the Tribunal member here to have more plainly stated to the appellant that one of the key findings of fact made by the Minister was now in doubt. However, during the course of the Tribunal’s examination of the appellant, in my view, sufficient was said to give the appellant notice of this issue. On four separate occasions during the examination of the appellant by the Tribunal member, the member referred to the uncle with the words “if he really was an LTTE member” or similar language. The role of the uncle in the appellant’s case was also the subject of extensive examination by the Tribunal member and, in my view the appellant was given a full opportunity to put his case. A critical part of the transcript of that examination was reproduced by the learned primary judge at par [8] as follows:

MEMBER: Okay. One of the things that I need to decide in whether I accept that what you are telling me is credible. And I have to say that I’m finding some aspects of your evidence difficult to believe. Okay, some of what you’re saying is pretty vague and some of it seems quite implausible. Do you understand?

INTEPRETER: Yes, I can understand.

MEMBER: I’m not saying I’ve made up my mind, I’m just telling you that that’s my impressions at the moment. As I think you’ve noticed from my comments some of the things that you’re saying I’m finding a little bit difficult to accept. I’m [sic] just want to note that I know that the delegate accepted that your uncle came from the north but I don’t think the delegate accepted that the uncle had anything to do with the LTTE from the decision. And given that – I mean you said that he’s in a detention camp but a lot of those camps are for people who lost their houses because of the conflict. And not everyone in the north as [sic] an LTTE member, so I think I kind of need to kind of weigh up what I think about your evidence in the context of everything that you’ve told me about that.

The foregoing might arguably not have been sufficient disclosure if the appellant had been self-represented before the Tribunal. But as counsel for the Minister submitted, the appellant was represented by his registered migration agent. In my view, that agent would have understood that the issue concerning the appellant’s uncle needed to be addressed. Further, it has not been suggested that the appellant would have adduced further evidence, or made different submissions if the issue of his uncle had been more squarely raised with his agent. It follows that, even if the appellant had been given better notice of the issue, this is a case where it can be said that more effective notice would probably have made no difference to the outcome of the appellant’s application for review before the Tribunal: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.

20    The appellant’s second complaint concerned the mistake made by the Tribunal about the Minister’s acceptance of the uncle’s membership of the LTTE. In Bains v Minister for Immigration and Citizenship (2012) 205 FCR 217, Bromberg J said (at par [40]):

A denial of procedural fairness may be established where a Tribunal misleads a party in the course of a hearing. The case dealt with by the High Court in AALA provides an example of a case where a party was misled by a Tribunal into believing that the Tribunal had taken into account certain material. The decision of the Tribunal was quashed for want of procedural fairness, because a credibility finding adverse to the party misled might not have been made if that party had not been misled and thereby taken the opportunity to answer the adverse inferences made by the Tribunal, which had led to the adverse credibility finding. In that case, the misleading conduct resulted in the denial of a proper opportunity to be heard and it could not be said that the denial of that opportunity made no difference to the outcome of the proceeding: See in particular Gleeson CJ at [4]; Gaudron and Gummow JJ at [80] and Kirby J at [128]-[133].

21    In my view, the Tribunal’s mistake did not lead to a denial of procedural fairness and did not constitute jurisdictional error. That is because, for the reasons given above, I am of the view that the appellant was sufficiently told that his uncle’s membership of the LTTE was an issue and he was given a full opportunity to address that issue.

22    The final complaint was that the Tribunal had overstated its description of what had occurred at the hearing in par [53] of its reasons for decision. Paragraph [53] provides:

The tribunal advised that it had concerns regarding the credibility of his some of evidence given that it appeared vague and implausible. It questioned whether his uncle was an LTTE member, noting the delegate did not accept that he was and put to the applicant that the camps where his uncle was appeared to be for those internally displaced from the conflict. It noted that not all Tamils living in the North were LLTE members.

23    The learned primary judge addressed this submission at pars [24] and [25] as follows:

Counsel focused on the use of the word “questioned”. When viewed in the abstract this appears somewhat stronger than the actual exchange that took place in the transcript as quoted above. However, the decision of the Tribunal and the exchange that took place must be seen in the context of a hearing process where, as noted above, the Tribunal is required to ensure that an applicant is on notice of the issues, but also to refrain from conducting themselves in a way that would create a reasonable apprehension of bias or an indication of pre-judging the issues.

As a result, the language of the Tribunal member in the transcript must necessarily be less forthright than might be imagined in the abstract, if one didn’t have to have regard to the rules relating to apprehended bias. In this context, it is fair to say that the issue was raised, and to that extent the use of the word “questioned” is a synonym. At best, it seems to me, that counsel’s argument is that the language used in paragraph [53] is somewhat infelicitous.

24    I agree with what is said in these paragraphs and can find no error in them.

25    As to the second ground of review, concerning logicality and rationality, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 644, Crennan and Bell JJ relevantly said at [130]:

In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

26    In my view, the submissions made by the appellant before me amounted to no more than emphatic disagreement with the conclusion of fact reached by the Tribunal. As such, the contention falls well short of the standard articulated in the well-known passage set out above in SZMDS. Having regard to the reasons of the Tribunal, it could not be said that no rational or logical decision maker could have reached the same conclusion on the same evidence. It follows that no basis for the appellate interference has been shown.

CONCLUSION

27    The appeal is dismissed with costs as agreed or assessed.

Associate:

Dated:    14 March 2018