FEDERAL COURT OF AUSTRALIA

BYM16 v Minister for Immigration and Border Protection [2018] FCA 326

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal as agreed or assessed.

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 Immigration Assessment Authority which 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 sought to rely upon an amended notice of appeal. Leave was refused because the ground sought to be relied upon was not raised in the Court below. The application was not supported by any written submissions to indicate why that should not stand as an insurmountable barrier to leave being granted. Nor was there any submission as to the substance or merits of the proposed appeal ground, and none was apparent. The appellant did not make any substantive oral submission as to why leave should be granted.

Overview

3    The appellant is from Sri Lanka. He arrived in Australia on a boat that was intercepted and was transferred to Cocos Island on 27 August 2012. He was released on a bridging visa that was collateral to a temporary safe haven visa on 26 February 2013. On 22 September 2015, he applied for a particular class of protection visa known as a XE-790 Safe Haven Enterprise visa, an earlier application having been found to be invalid. On 9 May 2016, the Minister’s delegate refused the grant of the visa.

4    The Authority conducts reviews of protection visa refusals in relation to “fast track” applicants, being protection visa applicants who arrived in Australia by boat after 13 August 2012 and before 1 January 2014. The Authority does not grant protection visas; it only either affirms the delegate’s decision or refers the case back to the Minister’s Department for further consideration, for example, after making a finding that the applicant was a refugee.

5    On 10 May 2016, the delegate’s decision was referred to the Authority for review. On 24 June 2016, the Authority affirmed the delegate’s decision not to grant the applicant the visa.

6    On 20 October 2017, the primary judge dismissed the appellant’s application for judicial review. His Honour refused an application to rely upon an amended application for review and rejected the only original ground of review that was pressed.

Before the Authority

7    The following summary of what transpired before the Authority is drawn from the written submissions for the Minister, which provide a succinct account of the appellant’s claims for the grant of a protection visa (omitting court book references):

(a)     Harm as a male Tamil from the North: the IAA accepted that the appellant was a Catholic Tamil from the Northern Province of Sri Lanka. The appellant had not claimed that he feared harm on return to Sri Lanka on the basis of his ethnicity or because he originates from the Northern Province. Based on the country information and the appellant’s circumstances (including lack of any past harm), the IAA was not satisfied that the appellant would face a real chance of serious harm on return to Sri Lanka on this basis.

(b)     Harm due to brother’s involvement in the LTTE: the IAA accepted the appellant’s claim that his brother was kidnapped by the Liberation Tigers of Tamil Ealam (LTTE) in 2008 and had been missing since. However, the Sri Lankan authorities were aware of his brother’s links to the LTTE and had not taken any further interest in the appellant and his family, and the appellant had been able to travel to India on his valid passport without any harassment. As such, the IAA was not satisfied that the appellant would face a real chance of serious harm on return to Sri Lanka on this basis.

(c)     Harm due to appellant’s employment with Thai TV and interrogation in February 2011: the IAA accepted that, while working as a cameraman with Thai TV, the appellant had been detained for approximately two days by the police and questioned in respect of a telecast about damage caused by flooding. The IAA also accepted that an influential MP (Minister Rishad) had been behind the arrest. However, the IAA was not satisfied that the appellant would face a real chance of serious harm on his return from either Minister Rishad or Sri Lankan authorities.

(d)     Harm due to employment with Dan TV and interrogation in July 2012: the IAA accepted that the appellant worked as a cameraman for Dan TV from May 2012. The IAA also accepted that he was interrogated by the authorities in relation to a protest opposite the Mannar district courts that he was initially sent to cover. However, the IAA found that the appellant was questioned as part of an investigation into interference by Minister Rishad in a matter where Minister Rishad had threatened a judge and the court had been attacked. The purpose of the questioning was to attempt to secure footage of the incident from the various journalists and photographers who were present. The IAA did not accept that, after the appellant denied having any footage of the protest, the CID would have any further interest in questioning him, or that Minister Rishad would suspect that he had recorded the attack on the court. The IAA was not satisfied that the appellant would face a real chance of serious harm on his return on this basis.

(e)     Harm due to involvement with Thaai News website: the IAA was willing to accept that the appellant was involved in forwarding news items to be uploaded to the Thaai news website in early 2015. However, there was no publicly available information to connect him with the website. Even if he continued to work as a reporter on his return to Sri Lanka, there was no evidence to suggest that reporters in Sri Lanka who had sent him news items had faced any repercussions. The IAA also accepted that he may engage in camera work in the media industry on his return, but based on country information the IAA was not satisfied that there was a real risk of serious harm.

(f)     Harm due to association with former LTTE member: the IAA accepted that the appellant had known a former LTTE member, Kesavan, who has now been granted asylum in the UK. However, there was no information to indicate that Kesavan had been identified by Sri Lankan authorities as a former LTTE member; no past harm had come to the appellant as a result of this association over a long period; and it was unlikely that the authorities would now discover that Kesavan was a former LTTE member. As such, the IAA was not satisfied that the appellant faced a real chance of serious harm on return to Sri Lanka as a result of the association.

(g)     Harm due to association with people who have claimed asylum in the UK: the IAA did not accept that Sri Lankan authorities were seeking out former Thai TV and Dan TV staff with whom he worked. The IAA also did not accept that the Sri Lankan authorities would link the appellant to the Sri Lankan diaspora in the UK who might be considered pro-LTTE.

(h)     Harm as a failed asylum seeker and for illegal departure: the IAA accepted that the appellant departed Sri Lanka illegally and would be identified as a failed asylum seeker on his return. However, based on country information, the IAA was not satisfied that there was a real chance of serious harm on this basis.

Before the primary judge

8    The only ground of review that was pressed before the primary judge was as follows (reproduced verbatim):

Ground 2

The assessor fell into error by taking into account and irrelevant consideration.

PARTICULARS

In paragraph 35 the assessor states that “there is no evidence to suggest that the police were concluding with Minister Rishad in this instance”.

9    The primary judge said of that ground of review:

48.    This ground is as follows. The IAA found at [35] of its reasons, that “there is no evidence to suggest that the police were colluding with Minister Rishad in this instance…”; however, not only did the applicant claim that the way in which he was “interrogated was a bit different because they knew he had been working in Thai and their tone was threatening” but also, the IAA had accepted, at [25], that “Minister Rishad was involved in the decision to arrest the Thai TV staff”. Thus, the IAA took into account an irrelevant consideration, namely, that “there is no evidence…” (emphasis in original).

49.    Leaving to one side the apparent misunderstanding of what it meant by an irrelevant consideration (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40), this ground must fail because it ignores what the IAA actually found but instead takes only a part of its finding. The IAA relevantly said, at [35] of its reasons:

Even though I have accepted the applicant’s claim the [sic] Minister Rishad was involved in his arrest and that of other Thai TV staff in 2011, apart from the applicant’s assertions, there is no evidence to suggest that the police were colluding with Minister Rishad in this instance in order to find and destroy the evidence of the court protests. It is clear from the country information that the purpose the investigation was to determine who was involved. …

(Emphasis added)

50.    When read as a whole (and without cutting out the parts that do not suit the applicant’s argument) this passage makes it clear that the fact that the IAA found there was no evidence of (apart from the applicant’s own assertions) any collusion between the politician and police to destroy evidence. The applicant has not pointed to anything to establish that that statement was not correct. For that reason, even if making an incorrect statement about the state of the evidence could constitute the type of error alleged, the ground must fail.

51.    There is no jurisdictional error in the IAA’s decision. The application must be dismissed.

The grounds of appeal

10    The notice of appeal contains a single ground as follows (reproduced verbatim):

The Judge in the Federal Circuit Court Judge committed a legal error when he dismissed the case filed in the FCC. His honour failed in several respects to consider that the Tribunal failed to consider my claims and integers of my claims and other relevant considerations in my matter raised during proceedings were not properly considered.

11    The Minister submitted that the ground was unparticularised, in that:

(1)    it failed to identify the “several respects” in which the primary judge was said to have failed to consider that the Authority, in turn, failed to consider the appellant’s claim; and

(2)    it did not make clear whether the “other relevant considerations … raised during proceedings” and not properly considered were matters that were raised before the Authority or before the primary judge.

12    The Minister further submitted that failure to particularise a ground of review is sufficient basis for it to be dismissed, citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] and WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

13    The Minister’s submissions should be accepted.

14    In any event:

(1)    the delegate’s reasons were detailed and comprehensive, running to 190 paragraphs over 35 pages;

(2)    the Authority conducted a review of the delegate’s decision, again providing detailed and comprehensive reasons that ran to 83 paragraphs over some 22 pages; and

(3)    the primary judge succinctly and thoroughly addressed the only original ground of review that was pressed before his Honour, as reproduced above.

15    I am unable to discern any error on the part of the primary judge, either by commission in what his Honour said, or by omission in overlooking any apparent error on the part of the Authority.

16    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    14 March 2018