FEDERAL COURT OF AUSTRALIA

BZE18 v Minister for Home Affairs [2019] FCA 126

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    On 29 September 2017 a delegate of the first respondent, the Minister for Home Affairs, refused to grant BZE18 a Safe Haven Enterprise Visa. The matter was referred to the Immigration Assessment Authority (the Authority) which, on 23 March 2018, affirmed the decision not to grant BZE18 the visa. BZE18 sought judicial review by way of an application for a Constitutional writ from the Federal Circuit Court of Australia (FCC) but that application was dismissed on 13 August 2018. It is from that decision that BZE18 now appeals to this Court.

Background facts

2    BZE18 is a citizen of Sri Lanka and his claims were assessed by reference to that country. Although he is of Tamil origin he does not seem to advance any claim based upon discrimination by reason of his ethnicity. Similarly, neither he nor his family members have ever been involved or supported any particular political party and they have not been subject to any forced recruitment by the Liberation Tigers of Tamil Eelam (LTTE) or any other group.

3    In Sri Lanka BZE18 worked for a company, Elim Enterprises in Colombo, for approximately six years selling dried fish. Nothing arises out of his employment in that regard.

4    However, he claims to have worked for 1 to 3 years on a casual basis as a body guard for a man who can be identified as “K”. K owned a business which, amongst other things, supplied food, clothing and books to underprivileged persons in the community. BZE18 claims that on one or more occasions in 2012 he was questioned by the Criminal Investigation Division (CID) regarding the source of K’s income. He claims he was held for a short duration at the police station, threatened and beaten.

5    BZE18 claims he went into hiding after being beaten by the police in 2012. That said, he also claimed he lived at his aunt’s house and continued to work at Elim Enterprises. Subsequently, he secured permission from the Sri Lankan authorities to work overseas in Qatar although the opportunity to do so did not eventuate.

6    In September 2012 BZE18 determined to flee Sri Lanka for Australia. After his arrival here he claims that he has been told the CID have continued to search for him.

Decision of the Authority

7    The Authority did not accept that BZE18 was arrested, questioned and beaten by CID officers on one or more occasions in 2012. Similarly it did not accept that he went into hiding for fear of harm from the CID officers. Further, it did not accept that he was a person of interest to the authorities on account of his relationship with K. The Authority provided a number of reasons for that conclusion including:

(a)    Inconsistencies as to the dates on which he had allegedly been taken to the police station and beaten.

(b)    The implausibility of the suggestion that K was of interest to the CID.

(c)    That it was implausible that if BZE18 were a person of interest to the police he would have received a police clearance for the purposes of working abroad.

(d)    That it was implausible that if BZE18 were hiding from the police he would continue to go to work at the business where he had worked for the previous six years.

8    The Authority accepted that BZE18 was of Tamil ethnicity but that did not, of itself, warrant the granting of protection. That was because the circumstances in Sri Lanka which existed during the civil war had substantially improved in recent times. Further, he had no real or imputed connections to the LTTE. The fact that BZE18 spoke both Tamil and Singhalese and had been employed for 10 years from the age of seventeen indicated that he did not encounter any barriers to employment.

9    BZE18 made a number of what was said to be new claims before the Authority. Although they were all rejected, two were the subject of the application to review which was made to the FCC.

10    First BZE18 claimed before the Authority that if he were returned to Sri Lanka and his re-entry was processed “en masse” he could be imputed with a political opinion he did not hold due to some other member of the group being found to be a person of interest. That was identified by the Authority as a “new claim” which had not been agitated before the delegate. A submission was provided to the Authority on behalf of the appellant by his representative, Mr Tambimuttu, to the effect that reference had been made before the delegate to the mass processing of returned failed asylum seekers. It was said that the issue was raised in a DFAT report.

11    The Authority determined that although the submissions referred to the DFAT report no information was advanced or identified which would support the contention being advanced as a claim by BZE18. The submission was more or less supposition without a credible basis. Consequently, the Authority was not satisfied that s 473DD(b)(i) or (ii) of the Migration Act 1958 (Cth) were met.

12    Similarly, BZE18 sought to have the Authority consider a bone scan of the appellant which was produced on 18 July 2017 being a document produced prior to the determination of the delegate on 29 September 2017. The report was not given to the delegate. It describes BZE18 as having moderate focal hyperaemia in both hips. The Authority observed that the appellant did not provide any explanation as to how the report was relevant to his claims for protection and, so it was held, the relevance of the document was not implicit on the information before the Authority.

13    Somewhat unusually the Authority did not deal with the bone scan in accordance with the requirements of s 473DD as it had done in relation to other new material which was advanced to it. Rather than determining whether it was “new information”, it concluded that it was not material relevant to its review.

14    As mentioned, the Authority did not accept that BZE18 was arrested, questioned and beaten by CID officers on one or more occasions in 2012. Nor did it accept that he went into hiding for fear of harm from CID officers. As a result it determined that he had no well-founded fear of persecution under the Convention. Similarly it found that Australia owed him no duties under the complementary protection provisions.

Appeal to the FCC

15    BZE18 sought the issue of a Constitutional writ in respect of the Authority’s decision from the FCC. Two grounds were advanced. The first was that the submission BZE18 had a well-founded fear of harm as a result of being processed “en masse” upon his return to Sri Lanka because he may be imputed with a political opinion was not a new claim and was wrongly disregarded by the Authority. The second ground of appeal related to the bone scan report. It was asserted that the Authority wrongly disregarded the report as not being relevant to the appellant’s claim. In particular, it was said the report was relevant to BZE18’s claim that policemen hit him with cricket bats on his backside and the upper outside of both arms.

Decision of the FCC

16    The FCC declined to grant a Constitutional writ directed to the Authority on the grounds advanced. The primary judge identified that BZE18’s legal representative submitted that the DFAT Country Information report was information before the delegate and was information from which a claim, albeit not expressly made, “clearly arose”, being the appellant feared harm should one member of a group of returnees who are processed en masse attract adverse attention with the result that he may be imputed with adverse political opinion.

17    The primary judge determined that the appellant did not raise any claim before the delegate that he feared harm by reason of being imputed with a political opinion that he did not hold because of en masse processing, should one member of the group of returnees who are processed attract adverse attention. His Honour found no such claim clearly arose on the material. He held that on a fair reading of the Authority’s reasons it took into account both limbs of s 473DD and that it did not adopt an erroneously narrow view of the exception.

18    His Honour held the second ground was “entirely hollow”. He observed that the legal representative for BZE18 was the author of the submissions advanced to the Authority and nowhere in those submissions was any word advanced to explain how the bone scan report was relevant as now claimed. The legal representative submitted that it could be gleaned the report was relevant because of BZE18’s claims that he had been hit with cricket bats on his backside and the upper outside of both arms. The learned judge observed that no such submission was advanced to the Authority for the purposes of it exercising its powers under ss 473DC and 473DD. His Honour held that the Authority provided a logical and rational reason in support of its adverse finding, being the absence of any explanation as to the relevance of the report and that it was not implicit on the information that was provided how the report might be relevant. It was said that both findings were open and could not be said to lack an evident and intelligible justification. Consequently, it could not be said that the finding that the bone scan was not relevant was legally unreasonable.

19    At paragraph 37 of the reasons his Honour stated his conclusion as to how the Authority found that the bone scan report did not meet the definition of “new information”. His Honour said:

It is apparent on a fair reading of the Authority’s reasons that the Authority found that the report did not meet the definition of new information because it was not relevant under s 473DC of the Act. That was a finding that was open to the Authority and was not the subject of any error as alleged in ground 2. The argument that there was an implicit relevance to the applicant’s claims lacks substance. The applicant’s representative, in light of the letter sent by the Authority, was clearly on notice of the criteria that had to be met in order for the Authority to consider new information.

20    His Honour also identified that no submission was advanced explaining why the report was relevant or why it would be credible personal information which, had it been known, may have affected the consideration of the application.

21    As a result the application for a Constitutional writ was dismissed.

The Notice of Appeal

22    The Notice of Appeal which was filed on 29 August 2018 was in the following terms:

1.     The FCC Judge committed an appealable error.

Particulars

a.    The judge has not published his reasons for dismissing my case.

b.     Once the reasons are published I will provide particulars.

23    Such a Notice of Appeal is, of course, not adequate in any respect and, in particular, for crystallising the issues for appeal. However, it ought be noted that this Court has previously identified that it is incumbent upon judges who deliver ex tempore judgments to make the written version of the reasons available expeditiously so to allow any dissatisfied litigant the opportunity to consider the reasons prior to the expiration of the appeal period. In this case, that might be ameliorated by the fact that BZE18’s application was argued by his solicitor whom, it can be presumed, will have understood the judgment and explained the reasons for the dismissal of the application.

24    No further Notice of Appeal has been filed and no written submissions were filed by the appellant. It is appropriate then to consider this matter as if BZE18 is dissatisfied with the result of each of the grounds agitated before the FCC.

25    The appellant appeared in person with the assistance of an interpreter and a friend who was given leave to sit with him at the Bar table. He sought to tender further material which he claimed advanced the claims which he made to the delegate. That tender was rejected because it went to the merits of the factual matters determined by the delegate and not to the issues which were relevant on appeal.

Ground one

26    The Minister’s submission that the primary judge correctly held that it could not be said that any claim relating to “en masse” processing squarely arose or was apparent on the face of the material provided to the delegate should be accepted. The Minister correctly points out that the 2017 Sri Lanka Country Report at 5.19 stated that “Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed”. There is no mention in that sub-paragraph or in the general section under the heading “Treatment of Returnees” (5.17 to 5.28) that a returnee might experience any risk of being imputed with the political opinion of others in the group being processed and especially those found to be persons of interest. There was nothing to suggest that this might occur and the fact of its existence is an asserted “knowledge about some particular fact” which was not before the delegate: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481, 488 [24]. For that reason the primary judge was correct to hold that the Authority did not err in identifying this claim advanced by the appellant as founded upon “new information”. One might add to that the absence of any information that would suggest BZE18 had any fear of persecution in that way.

27    In the course of the hearing the appellant seemingly acknowledged that the information about a fear of being processed with other detainees was new information and that there was no basis on which to assert that it was not. He gave the explanation that, at the time of the interview with the delegate, he did not know that he had to supply all of the information and that he did not know about this information at that time.

Ground two

28    As mentioned, the second ground before the FCC was the conclusion by the Authority that the bone scan report was not relevant to the issues in contest on the application for review. Importantly, s 473DC vests in the Authority the ability to consider new material that it considers may be relevant. The section provides:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

29    The Authority in this case concluded that bone scan report was not relevant and, so it might be inferred, did not need to consider whether it constituted new information. That is, it appears the Authority considered that even if it satisfied the requirements of “new information” it would not have been relevant to the determination. The judge below held that the Authority’s conclusion on this point was reasonably open. That appears to be in line with the decision of Logan J in CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967, [10] where his Honour said:

In terms, s 473DC(1) consigns the subject of relevance to the Authority’s evaluative judgement and then only to the extent that the Authority “considers” that the information concerned “may”, not “must”, be relevant. Language of this kind has the effect that it is not for a court on judicial review, much less for this Court in the exercise of appellate jurisdiction, itself to determine whether the information is or is not relevant or even whether it may be relevant. It is enough that a conclusion is reasonably open to the Authority that the information may or, may not, be relevant. The Authority correctly appreciated that the articles were relevant to the general subject of violence in Afghanistan but formed the view that neither touched on a basis for the claimed fear of persecution or, for that matter, more specific issues such as an ability to live in Kabul, even if not elsewhere in Afghanistan. It was reasonably open to the Authority to consider that neither of the news articles might be relevant to a claimed basis of fear of persecution. That being so, it was unnecessary for the Authority to advert to any of the considerations specified in s 473DD, because the need to consider them is predicated upon the existence of “new information”, as defined. Neither article comprised “new information”.

30    Here the Minister submits that it was plainly open to the Authority not to be satisfied that the report was relevant to the appellant’s claims. Importantly the report was provided by the solicitor on behalf of the appellant without comment or explanation as to its relevance or import. Although a reference was made to the report in the written submissions provided to the Authority its relevance was not explained.

31    It was submitted before the FCC that the document was relevant because of the appellant’s claims that he had been hit on the backside with a cricket bat. The learned primary judge held that no submission of that nature was advanced to the Authority. His Honour also observed that the Authority provided a logical and rational reason in support of the adverse finding being the absence of any explanation as to how the report was relevant and secondly that it was not implicit on the face of the information as to how it was relevant. His Honour said that both findings were open and cannot be said to lack an evident and intelligent justification.

32    There is force in the Minister’s submissions that the report itself did not provide any causal link between the claim of being beaten with a cricket bat and the scan results. The totality of the findings in the report were:

Findings

Whole body blood pool imaging shows moderate focal hyperaemia in both hips.

Delayed whole body, regional planar and SPECT/low dose CT images were subsequently obtained. These show relative photopenia in the superior aspect of the femoral head bilaterally with high grade curvilinear uptake noted through the middle of the femoral heads bilaterally. The low dose CT component shows curvilinear areas of sclerosis and prominent cystic change. Overall, these appearances are consistent with bilateral avascular necrosis of the femoral head with associated subchondral fracture.

No further abnormal uptake is identified elsewhere. Specifically, there is no abnormal uptake associated with the knees, or left ankle.

33    The reference to moderate focal hyperaemia in both hips may be a reference to an increased supply of blood to that area, but it does not, on its face, explain that such is the consequence of being beaten on the buttock with a cricket bat or is consistent with that. Similarly, the identification of photopenia in superior aspect of the femoral head bilaterally may mean, in general terms, a decrease in bone density in that area when considered on x-ray, however, there is also nothing to suggest it is causally related to the claim advanced by BZE18.

34    This being so the Authority’s conclusion that the bone scan was not relevant was a conclusion which was reasonably open to it. It cannot be said to be illogical or unreasonable.

35    Again, at the hearing the appellant seemingly acknowledged that the information was new information and that it was unclear how it related to the issues before the Authority.

36    In those circumstances there is no merit in the second ground advanced to the FCC.

Conclusion

37    Given the above, it is apparent that both grounds of appeal to the FCC were correctly dismissed. On the assumption that BZE18 might advance those grounds on appeal by asserting the primary judge erred in reaching the conclusion he did, such submissions could not be accepted. For the reasons identified an appeal from neither ground can succeed.

38    In the result, there is no merit in the appeal and it ought be dismissed with costs.

Associate:    

Dated:    15 February 2019