FEDERAL COURT OF AUSTRALIA

BKT15 v Minister for Immigration and Border Protection [2018] FCA 832

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, 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

(Revised From Transcript)

LOGAN J:

1    The appellant is a citizen of Sri Lanka. He came to Australia by boat on 2 July 2012. On 30 April 2012, he made an application under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Protection (Class XA) visa. On 16 August 2013, a delegate of the Minister, then termed the Minister for Immigration and Citizenship, now the Minister for Immigration and Border Protection (Minister), refused that visa application.

2    The appellant then sought the review of the Minister’s delegate’s decision by the Refugee Review Tribunal. On 25 June 2015, for reasons given in writing that day, that Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a Protection visa. The role of the Refugee Review Tribunal has, since then, been assumed by the Administrative Appeals Tribunal.

3    The appellant subsequently sought the judicial review of the Refugee Review Tribunal’s decision by the Federal Circuit Court. On 13 December 2017, that court dismissed, with costs, the appellant’s judicial review application.

4    The appellant now appeals against that order of dismissal to this Court. Unsurprisingly and understandably, the Administrative Appeals Tribunal has filed a submitting appearance. That means that the only active party respondent to the appeal is the Minister.

5    The grounds of appeal are lengthy. They are also unorthodox in the sense that they incorporate, in addition to the grounds, a related, written submission in most instances. As pleaded, the grounds of appeal are as follows:

1.    The Court below erred in finding that the Administrative Appeals Tribunal had failed to properly consider the Appellant’s claims under s36 (2) (a) and s36 (2)(aa) of the Migration Act 1958 (“the Act”)

2.    The Tribunal failed to comply with s424(A) or s 424 (AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. The Tribunal took into account information that had been given by the Appellant orally to the Minister’s Department in determining whether the Appellant was a truthful witness. That information was not put to the Appellant in accordance with s424 (A) or 424(AA) of the Act. The Tribunal raised concerns which seriously undermined the credibility of the appellant on the basis of following ‘information’ which should have been put formerly under section 424 (a) or Section 424 (aa) to put on notice to the applicant that such information would be the reason or part of the reason for affirming the decision under review and the applicant should have been advised that he can either orally comment or request additionally time to respond in writing.

A.    During the hearing, the Tribunal put to me that my claim that my parents took me from the army camp back to my home is at odds with my claim at the protection visa interview that they took me instead, to the home of a neighbour where I was remained until I left Sri Lanka that night.

It should be noted that the above ‘information’ and the inconsistencies were part of the reason for the Tribunal questioning the credibility of the applicant and affirming the decision of the Tribunal and those ‘information’ was provided to the delegate of the Minister during the DIBP interview.

The above matter provided the framework for the argument advanced which was to the effect that by operation of section 424A of the Act, the Tribunal had failed to provide to the applicant clear information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review.

In those circumstances, there has been neither compliance with 424AA(a) or 424AA(b)(i)-(iv) and accordingly there has been a breach of 424A(1), which is a jurisdictional error.

Accordingly, It is submitted that the failure of the Tribunal to oblige with the obligation under Section 424 A or Section 424 AA of the Act will amount to jurisdictional error.

3.    The Court below erred in not finding that the Tribunal failed to consider relevant consideration and integer aspect of the applicant’s claim for protection. AAT failed to consider that claim in the sense of giving proper, genuine and realistic consideration to that claim.

A.    The applicant mentioned that he is a Tamil Fisherman which is a particular social group. (Federal Circuit Court book 142). The Tribunal failed to ask relevant questions and failed to consider his claim which can be assumed from the materials that he is a Tamil fishermen and would face discrimination and harm.

B.    In his Entry Interview (Federal Circuit Court book page 8 and 9), the applicant noted that his place is Uddappu and said Uddappu is a Tamil area surrounded by Sinhalese areas. The applicant in his statement particularly raised a claim and said he fears because of his race as a Tamil and particularly because he is a Tamil living in Udappu. It is respectfully submitted that it is an integer of applicant’s claim and the Tribunal failed to consider the applicant’s claim either under the Refugee Convention or under the Complementary Protection Ground. His Honour in his reasons of Judgement in the Federal Circuit said that the applicant did not raise claim to fear harm on the basis of being a Tamil fisherman from Udappu. I respectfully disagree with the view. The reason is, in my entry interview I said the following which at least implicitly raising the claim that I would face harm on the basis of being a Tamil fisherman from Udappu. The entry interview records noted the “Udappu is a Tamil area on suspicion they will take you and beat you up.” In my view and even from a reasonable minded person’s view, it explicitly or at least implicitly reveals that I raised a claim that as a person from Updappu which is a Tamil area I would be harmed on suspicion. I submit that beating would amount to serious harm. Accordingly, I submit that I raised the claim that I would face harm on the basis of a Tamil person from Updappu. I further submit that Tribunal failed to asses the integer part o my claim and the Federal Circuit failed to identify the integer part of the claim.

Further, my representative’s submission dated 04 March 2015 (CB 179 to CB 186) noted the following:

“Mr Udappu’s (my) village is primarily Tamil village and is surrounded by Sinhalese and Muslim areas. This caused problems for [the applicant], as the authorities would target Tamils, including [the applicant], and accuse them of being responsible for problems such as thefts and bombings. They regularly accuse Tamil people being involved with the LTTE”

I submit that following can be made out from the above submission:

A.    Udappu is a Tamil village surrounded by Sinhalese.

B.    Due to that it causes problems for me.

C.    Authorities target Tamils live in Updappu and accuse them of being responsible for bombings.

D.    Police regularly accuse Tamil people from Udappu being involved with the LTTE.

It is clear from the above submissions, that a claim that I would face harm on the basis of being a Tamil from Udappu is made out and the Tribunal overlooked this integer claim and the Federal Circuit also failed to acknowledge the legal error committed by the Tribunal. clear from the above submission that I raised the issue

4.    The Court below erred in finding that the Tribunal did not misunderstood the applicant’s claim.

A.    The applicant said if he is detained even for a brief period until he is released on bail as suggested by the Tribunal, he would face torture and sexual assault. The Tribunal said there is no information to suggest that anyone who had returned to Sri Lanka from Australia had been subjected to sexual assault or torture while in remand for having left the Country unlawfully.

B.    The Tribunal only considered that the applicant would not face sexual assault while in remand for having left the Country unlawfully. However the Tribunal failed to assess whether the applicant would face sexual violence in prison on the basis that he sought protection in Australia by providing critical information against Sri Lanka. In its decision AAT (para 50 and 51) noted that the Tribunal accepted that the applicant would be subjected to the processes of questioning and possibly arrest. In other words that the Tribunal failed to consider whether the applicant would face imprisonment as a failed asylum seeker (as a separated claim of unlawful departure) and would face sexual violence.

The Court below erred in finding that the Tribunal did not fail to consider the following claims under the Complementary Protection ground. AAT misconstrued or misapplied the test for complementary protection in that the Member failed to separately consider whether evidence of a risk of harm which he implicitly accepted existed in relation to his consideration of Convention related grounds (namely brief arrest and imprisonment) raised by the applicant, but which were not made out in relation to those Convention grounds, could nonetheless give rise to a complementary protection claim.

A.    The Tribunal accepted that there is a possibility that the applicant may be detained and arrested at the airport after being questioned and later remanded in custody for a relatively brief period awaiting a bail hearing. However, the Tribunal failed to consider the applicant claim that he would face sexual violence in the custody of the Sri Lankan authorities under the Complementary Protection ground.

B.     The Tribunal failed to assess whether the applicant or his family would be able to furnish financial surety for bail in order to release his from the imprisonment under the Complementary protection ground. Though, the Tribunal considered under the Refugee Convention ground, it failed to consider under the Complementary Protection ground whether the applicant has the ability to provide financial guarantee for bail.

[sic]

6    The Minister submitted that Ground 1 in the notice of appeal raised a point not taken before the Federal Circuit Court; I am not convinced that this is correct. Although Ground 1 is generally stated, it is possible to assimilate it with an equally generally stated Ground 3 in the amended grounds of review before the Federal Circuit Court, as set out in para 27 of that court’s reasons for judgment. As pleaded, Ground 1 in the notice of appeal does appear to have omitted the word “not” prior to the word “finding” in the first line of the ground. I read the ground accordingly.

7    Though given the opportunity this afternoon to elaborate upon Ground 1 and upon each of the other grounds, the appellant did not do so in oral submissions. Rather, he adopted, insofar as the notice of appeal contained an element of written submission, those particular submissions.

8    Of course, it would require a grant of leave to advance, on appeal, a point not taken in the court below but the real vice with Ground 1 in the notice of appeal is that it is pleaded at such a level of generality as to be devoid of meaningful content. That deficiency in particularity was not remedied in the appellant’s oral submissions. As it happens, what looks to be the appellant’s complaint in relation to a failure by the Federal Circuit Court to hold that his claim as made was not considered by the Tribunal has been taken up in detail in Ground 3 in his notice of appeal. I shall therefore address that alleged deficiency on the part of the Tribunal when considering Ground 3. For the moment, it is enough to observe that, on a fair reading of the Tribunal’s reasons as a whole, the Tribunal has at least embarked upon a consideration of the merits of the appellant’s protection visa claim and whether he was entitled, in any event, to complimentary protection.

9    If the Tribunal had not done this at all, Ground 1 might, notwithstanding its generality, have substance. As it is, that generality, as I have already observed, makes it devoid of meaningful content. I therefore dismiss Ground 1.

10    Ground 2 alleges a failure on the part of the Tribunal to comply with either s 424A or s 424AA of the Act. Ground 2 exhibits the vice of not engaging with the judgment under appeal, as opposed to focusing upon the Tribunal’s decision. I read it though as an assertion that the Federal Circuit Court failed to find the errors particularised in the Tribunal’s reasons.

11    So viewed, it takes up Ground 1 in the amended grounds before the Federal Circuit Court. The learned primary judge found that the operation of s 424A(1) of the Act was, in the circumstances, excluded by the operation of s 424A(3)(b) of the Act. That followed from a finding which his Honour made, at para 38, that the delegate’s decision record had been furnished on behalf of the appellant to the Tribunal when he made his application for review. It is perhaps worth noting in this regard that in relation to his application for review to the tribunal the appellant was represented by a solicitor and registered migration agent. The use which the Tribunal made of the decision record of the delegate was to compare and contrast for inconsistency a summary of the statements made to the delegate as recorded in that decision record with statements made by the appellant to the Tribunal when taking up the offer of hearing.

12    I respectfully agree with the learned primary judge that the summary of the evidence given to the delegate, as recorded in the delegate’s decision record furnished on his behalf to the Tribunal, constituted “information that the applicant gave for the purposes of the application for review” in terms of s 424A(3)(b) of the Act. It necessarily follows that that information was excluded from the obligation found in s 424A(1) of the Act. Further, the Tribunal’s thought processes in relation to an inconsistency as between the statement made by the appellant to the delegate and the statements made by the appellant to the Tribunal at the hearing were not information for the purposes of s 424A of the Act. It also follows from these conclusions that no obligation under s 424AA could arise.

13    The position in relation to s 424A would be otherwise if the decision record of the delegate had not been furnished on behalf of the appellant to the Tribunal, and instead the Tribunal had sought out and had regard to a transcript or oral recording of the information provided orally by the appellant to the delegate. In that circumstance, the proviso in s 424A(3)(ba) of the Act would be applicable and the obligation in s 424A(1) would be engaged. If, in that circumstance, the Tribunal either had failed to comply with the obligation in s 424A(1) or, alternatively, not adopted during the hearing the procedure for which s 424AA applies, jurisdictional error would have been committed, but that is not this case. Ground 2 is therefore dismissed.

14    As to Ground 3, it may be accepted that a failure on the part of the Tribunal to consider an integer or component of a claim for protection would amount to a failure to discharge the function of reviewing the decision in respect of a visa application as made: see Dranichnikov v Minister for Immigration and Citizenship (2003) 77 ALJR 1088. The learned primary judge found that no error of this kind had been committed by the Tribunal. Scrutiny of the Tribunal’s reasons bears this out.

15    The Tribunal, at para 10, summarised in detail the appellant’s claims in his protection visa application and accompanying statutory declaration. Later in its reasons the Tribunal, at para 20, described the appellant’s claims in this way:

The Applicant claims to fear serious harm in Sri Lanka on the Convention grounds of his Tamil race, his real or imputed political opinion in favour of the LTTE and against the government, and his membership of the particular social group consisting of ‘Tamil failed asylum seekers.’

To this, the Tribunal added, at para 23:

The Applicant claims the authorities suspect the inhabitants of his village of Udappu of supporting the LTTE because of their Tamil ethnicity.

16    The Tribunal also addressed whether, on return, the appellant would be imputed with pro-LTTE or anti-government political opinion by the authorities. It was not satisfied that that he would be so regarded (see para 35 of the Tribunal’s reasons). Reading the Tribunal’s reasons as a whole, it is quite apparent that all aspects of the appellant’s Protection visa claim as made have been addressed by the Tribunal.

17    Rolled into Ground 3 of the grounds of appeal is an assertion of a failure “to ask relevant questions.” It was though for the appellant to place such material in support of his claim as he was able. The Tribunal was under no general duty to make inquiries in support of the appellant’s claim: see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. Its core function was that of review. Of course, if there were an obvious inquiry readily made, then a failure by the Tribunal to make that inquiry could amount to a failure to discharge its statutory function. It might be said that the failure to do so made the resultant decision of the Tribunal unreasonable, but that, too, is not this case. There is therefore no merit in Ground 3.

18    The essence of Ground 4 would appear to be an asserted failure on the part of the Tribunal to consider a claim by the applicant that he would face sexual assault while in remand detention on return from Australia, but the Tribunal’s reasons disclose that this subject was expressly addressed in the course of the Tribunal’s consideration of the claim (see para 18, p 227, last dot point on that page and the three lines from the bottom of that page). In turn, the Tribunal’s conclusion, responsive to its consideration in the course of a hearing of that assertion, was that the Tribunal was not satisfied that the appellant would be subjected to, amongst other things, sexual assault in the course of his remand detention (see para 62 of the Tribunal’s reasons). There is therefore no substance in Ground 4 in the notice of appeal.

19    What is revealed, overall, when one reads the Tribunal’s reasons as a whole, is a detailed, even exhaustive, consideration of the merits of the appellant’s Protection visa claim as made and, in turn, whether or not in any event the appellant had a claim for complementary protection. The Tribunal’s disposal of the review application turned on assessments of credit and also on the Tribunal’s adoption of particular country information. The Tribunal’s resultant conclusions were reasonably open. No error on the part of the Federal Circuit Court is revealed. It follows that the appeal must be dismissed.

Associate:

Dated:    6 June 2018