FEDERAL COURT OF AUSTRALIA

BRU15 v Minister for Immigration and Border Protection [2018] FCA 453

Appeal from:

BRU15 v Minister for Immigration & Anor [2017] FCCA 712

File number:

NSD 617 of 2017

Judge:

GLEESON J

Date of judgment:

12 April 2018

Catchwords:

MIGRATION whether to grant leave to amend notice of appeal – whether proposed amended ground of appeal meritless such that amendment futile – consideration of proper approach to corroborative evidence where provenance not established – appeal dismissed

Legislation:

Federal Court Rules 2011 r 36.10

Cases cited:

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 115 ALD 294

Re Minister for Immigration and Multicultural Affairs; Ex-parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

Date of hearing:

2 March 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

35

Counsel for the Appellant:

Mr PW Bodisco

Solicitor for the Appellant:

Mr S Hodges of Hodges Legal

Counsel for the Respondents:

Ms C Hillary

Solicitor for the Respondents:

DLA Piper Australia

ORDERS

NSD 617 of 2017

BETWEEN:

BRU15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

12 April 2018

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal in accordance with the amended notice of appeal filed 26 February 2018 be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (“AAT”): BRU15 v Minister for Immigration & Anor [2017] FCCA 712 (“FCCA judgment”). In its decision, the AAT affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the appellant a protection visa.

2    At the hearing of the appeal, the appellant sought leave to rely on an amended notice of appeal in substitution for the original notice of appeal, containing the following single ground of appeal:

That her Honour erred by failing to find that there had not been a proper, genuine and realistic consideration of the evidence contained in a Human Rights Commission of Sri Lanka letter dated 25 February 2010 (“the HRC letter”) in circumstances where the [AAT] had made determinative and adverse credibility findings before assessing the corroborative evidence.

Particulars

a.    Her Honour erred at [55] of the decision in holding that it was open to the [AAT] “to assess the credit of the applicant and then, in the light of that assessment, consider what weight should be given to the HRC letter.

3    That leave was opposed by the Minister. Accordingly, it was convenient to hear the application for leave to amend the notice of appeal at the same time as the appeal.

Background to appeal

4    The appellant arrived in Australia as an irregular maritime arrival in July 2012 and lodged an application for a protection visa on 12 December 2012.

5    A summary of the appellant’s claims for protection, prepared by his solicitor for the FCCA proceeding, is set out at [20] of the FCCA judge’s reasons. The summary concludes:

The applicant claims to fear harm or persecution from the Sri Lankan authorities if he were to return to Sri Lanka, for the following reasons:

10.1    He is of Tamil ethnicity.

10.2    He lived in the eastern province.

10.3    He departed Sri Lanka illegally.

10.4    He applied for asylum in Australia.

6    The protection visa application was accompanied by a letter dated 30 November 2012 which attached various documents including the HRC letter referred to in the proposed amended notice of appeal.

7    The letter sets out a complaint number and states:

This is to inform you that your complaint dated 25.02.2010 has been registered under the above number and is receiving attention of the commission.

8    The letter is purportedly signed by the Regional Coordinator Human Rights Commission of Sri Lanka Regional Office Kalmunai.

9    A handwritten annotation to the letter stated “Original sighted @ PV interview 14/6/13”.

Tribunal’s reasons

10    The written submissions filed on behalf of the appellant noted that the AAT dealt with his credibility under eleven headings commencing at para 25 of its decision record before ultimately concluding, at para 51, that the “Tribunal is not satisfied that the applicant is a witness of truth”. Counsel for the appellant, Mr Bodisco, acknowledged that the appellant did not dispute that this conclusion was open to the Tribunal.

11    At para 54 of the decision record, the AAT said:

The Tribunal acknowledges that the applicant provided some consistent evidence throughout the process about the key events (for example, he claimed he feared unidentified people who had visited his family home wearing masks and had asked for his whereabouts). However, the Tribunal is not persuaded that these matters can overcome the difficulties with the applicant’s evidence as referred to above.

12    At para 55 of the decision record, the AAT said:

The applicant provided supporting documents. The Tribunal noted at hearing that there was country information indicating that documents can be fabricated, and it would have to weigh up that information together with credibility concerns. The documents provided included a letter from the HRC which acknowledged a complaint had been made. Having regard to the credibility concerns and the country information, the Tribunal is not prepared to accept that this is a genuine letter. The Tribunal does not give this letter any weight.

FCCA decision

13    The appellant argued two grounds in the FCCA proceeding. The first ground raised a complaint of denial of procedural fairness. The FCCA judge’s decision on the first ground is not the subject of the appeal.

14    The second ground was that the AAT failed to assess and weigh five documents provided by the appellant. One of the documents was the HRC letter.

15    The FCCA judge set out the HRC letter at [46] of her Honour’s reasons. At [48], her Honour set out para 55 of the AAT’s decision record. At [50], her Honour recorded the submission made on behalf of the appellant that the HRC letter was potentially corroborative of the appellant’s assertion of having received a death threat in 2010, and that his parents went to the Human Rights Commission in Sri Lanka following that event.

16    After considering the AAT’s reasons, at [54] her Honour noted the AAT’s acknowledgment “that the applicant had provided some consistent evidence, but was not persuaded that it was sufficient to overcome the Tribunal’s overall difficulties with the applicant’s evidence detailed by it in its decision record”.

17    At [55], her Honour concluded that it was open to the AAT to assess the credit of the appellant and then, in light of that assessment, consider what weight should be given to the HRC letter. Her Honour referred to Re Minister for Immigration and Multicultural Affairs; Ex-parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (“S20/2002”) and Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 115 ALD 294 at [33] (“SZNSP”) in support of this proposition.

18    In SZNSP at [33], North and Lander JJ (Katzmann J agreeing) said:

[C]onsistently with Applicant S20/2002 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence Given the adverse credibility finding, the Tribunal does not give weight to the document. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

19    At [56] to [58], the FCCA judge said:

The Tribunal’s finding to put no weight on the HRC letter was made in the light of country information before it that documents can be fabricated and its adverse credibility findings in respect of the applicant. Moreover, the HRC letter itself gave no information whatsoever about the nature of the complaint, although it was dated early 2010.

In the circumstances, the Tribunal considered the HRC letter and what weight to give it. Its conclusion that it gave it no weight was open to it on the evidence and material before it and for the reasons it gave.

Accordingly, Ground 4 is not made out.

Leave to amend notice of appeal

20    By r 36.10 of the Federal Court Rules 2011, an appellant may amend a notice of appeal without the Court’s leave during the period of 28 days after filing the notice of appeal. Otherwise, leave to amend is required.

21    A party seeking leave to amend bears an onus of satisfying the Court that grounds exist for exercising the discretion in his or her favour: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 547. Leave to amend will not be given where the proposed amendment would be futile: cf. Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 at [19]-[21].

Appellant’s submissions

22    Despite the particulars to the proposed amended ground of appeal, Mr Bodisco did not contend that the FCCA judge made an error in her statement of the law at [55] of her Honour’s reasons (that it was open to the AAT to assess the appellant’s credibility before then considering what weight should be given to the HRC letter). As he put it, “if that sequence occurred [S20/2002] would pose some considerable difficulties for me”. Mr Bodisco’s argument was instead that the HRC letter was disregarded by the AAT and “not given the appropriate weighing test”.

23    Mr Bodisco cited the following passage from the reasons of Gleeson CJ in S20/2002 at [14]:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

24    As appears from [11] of his Honour’s reasons, in S20/2002, the principal suggested error concerned the way in which the member of the Refugee Review Tribunal dealt with the evidence of a witness who claimed to have observed the way in which the Sri Lankan authorities treated the applicant/appellant after he had assisted two persons associated with a subversive group.

25    Mr Bodisco then cited the following passage from SZNSP, at [36]:

When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicants claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicants account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand.

26    Mr Bodisco accepted, as “one possible distinction” between this case and S20/2002 that, as in SZNSP, the provenance of the asserted corroborative evidence was not established.

27    Mr Bodisco then cited from SZNSP at [38] and [39]:

[38]    The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 [2003] HCA 30; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 [2003] HCA 30; 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

[39]    On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.

28    Mr Bodisco seemed to suggest that [54] of the FCCA judge’s decision was flawed with respect to the treatment of the HRC letter but, as Mr Hillary correctly observed, [54] is directed to the AAT’s assessment of the evidence of the appellant personally and not to its assessment of the asserted corroborative evidence.

29    As to [56] of the FCCA judge’s reasons, Mr Bodisco described the second part of the first sentence (that the AAT’s finding to put no weight on the letter was made in the light of its adverse credibility findings in respect of the appellant) as “questionable” and the second sentence (making findings about the letter) as a “merits-based assessment”. Mr Bodisco concluded by saying that the FCCA judge’s conclusion, at [57], that the AAT considered the HRC letter and what weight to give it “simply did not occur”, in that it was not considered “against the backdrop of a presumptive conclusion as the other matters were”. I understood the criticism to be that the AAT did not consider whether the letter could redress or displace its “credibility concerns”.

Consideration

30    I do not accept Mr Bodisco’s argument.

31    The HRC letter is materially different from the corroborative evidence that was the subject of S20/2002, in that its provenance was not established. It is documentary evidence of the kind considered in SZNSP, the provenance of which was unproved. As the Full Court concluded in SZNSP, there is nothing irrational in rejecting a document by giving it no weight where there is no evidence other than the applicant’s to say that it is a genuine document. I respectfully agree with their Honours observation, towards the end of [36] of their Honours’ reasons:

In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.

32    Thus, there was no requirement for the AAT to assess the HRC letter against “the backdrop of a presumptive conclusion”.

33    As set out above, at para 55 of the decision record, the AAT considered the HRC letter and decided to give it no weight in light of the country information and its credibility concerns. It follows that the FCCA judge was correct to find that the AAT considered the HRC letter and what weight to give it.

34    Accordingly, the proposed amended ground of appeal has no merit and it would be futile to grant leave to amend.

Conclusion

35    Leave to amend the notice of appeal is refused. The appeal must therefore be dismissed. Costs should follow the event.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Associate:

Dated:    12 April 2018