FEDERAL COURT OF AUSTRALIA

BNV18 v Minister for Home Affairs [2018] FCA 1788

ORDERS

THE COURT ORDERS THAT:

1.    The applicants have leave to appeal from the interlocutory judgment of the Federal Circuit Court of Australia delivered on 27 July 2018.

2.    The applicants have leave to file their notice of appeal substantially in the form of the draft notice of appeal dated 3 August 2018.

3.    The appeal be listed for hearing on a date to be fixed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

MURPHY J:

1    This is an application for leave to appeal from the judgment of the Federal Circuit Court (FCC) in BNV18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 2061. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority), which had affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs, not to grant protection visas to the first and fifth applicants, BNV18 and BOJ18, who are husband and wife, and their three children BOG18, BOH18 and BOI18.

2    The applicants are citizens of Sri Lanka, who arrived in Australia as unauthorised maritime arrivals. The first applicant arrived in Australia with the fourth applicant on 13 December 2012. The fifth applicant and the third applicant arrived in Australia on 9 June 2013. The second applicant was born in Australia. Following the Minister exercising his discretion to raise the bar under s 46A(2) of the Migration Act 1958 (Cth) (the Act), on 17 June 2017 the applicants lodged applications for Save Haven Enterprise Visas (SHEVs). Broadly, the applicant husband and wife claimed to fear harm in Sri Lanka on the basis of their Tamil ethnicity, their imputed pro-Liberation Tigers of Tamil Eelam (LTTE) political opinion, their illegal departure from Sri Lanka and their status as failed asylum seekers.

PROCEDURAL HISTORY

3    On 29 August 2017 a delegate of the Minister refused to grant SHEVs to the first and fifth applicants. The decision was referred to the Authority for review on 1 September 2017. On 19 September 2017 the applicants provided written submissions to the Authority together with a document purporting to be an arrest warrant in Sri Lanka for the first applicant issued on 5 February 2013 (the Warrant) (which document is central to the application for leave).

4    On 6 March 2018 the Authority affirmed the decision of the delegate. The first and fifth applicants applied to the FCC for judicial review of that decision. On 27 July 2018 the FCC refused the applicants’ application for judicial review at a show cause hearing. As the dismissal of an application at a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) is interlocutory in nature, the applicants require this Court’s leave to appeal from the judgment of the FCC below: see rr 44.12(1)(a) and 44.12(2); Federal Court of Australia Act 1976 (Cth) s 24(1A); SZTVU v Minister for Home Affairs [2018] FCA 1394 at [25].

RELEVANT PRINCIPLES

5    For leave to appeal to be granted, the applicants must show there is sufficient doubt as to the correctness of the judgment below to warrant review; and that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicants if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 (Sheppard, Burchett and Heerey JJ); Re CSR Limited [2010] FCAFC 34; (2010) 183 FCR 358 at [5] (Keane CJ and Jacobson J).

6    It is important to emphasise that the judgment of the FCC is effectively final in so far as the applicants are concerned, and in these circumstances a prima facie case for granting leave to appeal is sufficient: Duncan v Secretary, Department of Family and Community Services [2007] FCA 507; (2007) 9 ALD 241 at [18] (French J); SZTVU v Minister for Home Affairs [2018] FCA 1394 at [28] (Perry J). In considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess ‘the merits’ in a fairly rough and ready way”: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9] (Brennan CJ and McHugh J).

7    The first respondent accepted that if the judgment below is assumed to be wrong, the applicants would suffer substantial injustice if leave to appeal is refused.

The Authority’s decision

8    Section 473DD of the Act provides:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

9    The Authority determined at paragraph six of its decision that the Warrant was “new information” under s 473DD, and that because the requirements of s 473DD(b) were not satisfied it was prohibited from considering the document. The Authority said the following:

Attached to the applicants’ submission is a copy of a warrant of arrest. I consider this document to be new information. The warrant is dated 5 February 2013, several years before the delegate’s decision. I note that it is claimed that the warrant was held by the applicant’s brother in law in Sri Lanka who provided the applicant with a range of documents prior to the SHEV interview but not this document. The matter of the warrant was also discussed at the applicant’s SHEV interview but not provided. I have concerns about the reliability of this document. The name and address on the warrant are different to the stated name and address of the first applicant. I have considered the possibility that the name on the warrant is a transliteration of the first applicant’s name but the spelling is quite different. The warrant states that the reason for issue is ‘failure to attend court’. The warrant does not identify the offence that the court attendance is relevant to, and it was apparently issued after the applicant arrived in Australia. The applicant has not provided any documentation to support his claim that he was charged with an offence that required a court appearance. The applicant has not satisfied me as to either of the matters in s 473DD(b). I cannot consider this new information.

Determination

10    The draft notice of appeal lists 14 grounds but the applicants only rely on two of them, being Grounds 9 and 11, and said that Ground 12 “essentially piggybacks” on Ground 11. In my view there is sufficient doubt attending the correctness of the primary judge’s findings on Ground 9 and Ground 11 to justify granting leave to appeal.

11    Ground 9 of the draft notice of appeal is as follows:

The FCC failed to find that IAA erred in declining to consider the arrest warrant being new information on the basis that ‘the applicant has not satisfied’ IAA ‘as to either of the matters in s 473DD(b), nor had considered s 473DD(a), and accordingly the decision declining to consider the arrest warrant was not based on a proper consideration of the relevant law.

12    The Minister says that Ground 9 does not disclose an arguable case of jurisdictional error in summary because:

(a)    it is apparent from paragraph six of the Authority’s reasons that it declined to receive the “new information” in reliance on both elements of s 473DD(b) of the Act;

(b)    while the Authority did not consider whether there were exceptional circumstances for the purposes of s 473DD(a) of the Act, where the Authority is not satisfied under both limbs of subparagraph (b) it does not fall into jurisdictional error merely by failing to consider subparagraph (a): Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 (CQW17) (McKerracher, Murphy and Davies JJ); and

(c)    in the present case, there were no exceptional circumstances for the Authority to consider, the Warrant was proffered to the Authority without comment, the Warrant had been referred to at the interview with the delegate but not provided at that time, the Authority considered that circumstance, and the Authority took into account its difficulties with the document on its face.

13    While the Minister’s submissions are not without merit, I consider the applicants’ arguments raise sufficient doubt as to the correctness of the primary judge’s decision to warrant leave to appeal being granted.

14    The doubt essentially turns on the Authority’s approach to the Warrant. In my view it is arguable that the Authority failed to engage in an active intellectual process directed at the first applicant’s submissions about the Warrant and its import: Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462-3 (Black CJ); AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [31] (Moshinsky J); CQW17 at [39].

15    With respect to s 473DD(b)(i), the first applicant said that the Warrant was issued after he left Sri Lanka, and at the time he made his application for a visa the Warrant was not in his possession. He submits that it was in Sri Lanka in the possession of his brother. It is arguable that, had the Authority engaged in an active intellectual process, it would have given consideration to any explanation offered by the first applicant as to why it could not have been provided earlier. Yet the Authority did not make a definite finding in regard to any explanation before concluding s 473DD(b)(i) was not met.

16    With respect to s 473DD(b)(ii), the Authority expressed concerns about the reliability of the Warrant, but did not make an express finding as to whether the Warrant was credible (although it did state that s 473DD(b)(ii) was not met). The first applicant offered an explanation for the possible discrepancies in the Warrant to which the Authority referred in paragraph six. On its face that explanation was capable of addressing the Authority’s concern about reliability because, the first applicant submits that: (a) the only difference in the name on the Warrant is in the spelling of the first name which the first applicant puts down to a transliteration problem; and (b) the asserted incorrect address is his wife’s rather than his address, which may be thought unsurprising as he had left the country at the time the Warrant was issued. Arguably the Authority did not engage in an active intellectual process in regard to the first applicant’s explanation about the reliability of the Warrant.

17    Further, having regard to Bromberg J’s remarks in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42] it is also arguable that the Authority’s approach to s 473DD(b)(ii) was too narrow. It may be argued that the Authority decided s 473DD(b)(ii) was not satisfied because it did not believe the Warrant was genuine, not because the Warrant was not capable of being believed.

18    It may also be argued that the Authority should have turned its mind to s 473DD(a) when considering s 473DD(b) and that the primary judge erred in finding there were no exceptional circumstances to consider. While it is clear as a matter of statutory interpretation that subparagraphs (a) and (b) of s 47DD are cumulative requirements, as the Full Court said in CQW17 at [71] a consideration of matters under subparagraph (a) may bear on determination of the matters under subparagraph (b), and vice versa.

19    The first applicant submits that the Warrant arose from his earlier failed attempt to depart from Sri Lanka which had led to him being caught by the Sri Lankan Navy. He submits that he was charged for this but again fled the country and therefore failed to attend court, and the Warrant relates to his failure to do so. It is arguable that these were exceptional circumstances which were raised but not dealt with by the Authority, and that the existence of such exceptional circumstances could have informed the Authority’s consideration of the matters in subparagraph (b).

20    Ground 11 of the draft notice of appeal is as follows:

The FCC failed to find that IAA erred in not understanding the evidence given by the Applicant 2 [the applicant wife] that the Applicant 2 was assaulted and raped on three separate occasions, the IAA conflating evidence and incorrectly concluding that the Applicant 2 was not raped and the allegations were fabricated to enhance her claim for protection.

21    This proposed ground of appeal may well be weaker than Ground 9, but in my view there is sufficient doubt to warrant a grant of leave to appeal.

22    The fifth applicant submits that the Authority misapprehended or misunderstood her evidence about the timing and circumstances of the occasion (or, as she says, occasions) on which she says she was assaulted and/or raped by members of the Sri Lankan army, and that her evidence was not inconsistent in the way the Authority found.

23    The fifth applicant’s submissions invited a review of the various statements by her at different stages of the visa application process but the Court Book containing those statements is not before the Court in the application for leave to appeal, and it is impossible to give detailed consideration to that submission. I take the view that the submissions cast sufficient doubt on the correctness of the Authority’s decision to justify a grant of leave so that the Court can properly consider the statements, and in particular whether the Authority’s finding was open on the evidence.

Associate:

Dated:    19 November 2018

SCHEDULE OF PARTIES