FEDERAL COURT OF AUSTRALIA

ANY16 v Minister for Home Affairs [2019] FCA 265

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

THAWLEY J:

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 13 September 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal dated 3 March 2016. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) dated 24 October 2014, refusing the appellant’s application for a Protection (Class XA) visa.

2    The appellant filed a notice of appeal in this Court on 27 September 2018. That notice contained a single ground of appeal:

The Federal Circuit court failed to find, in respect of the AAT’s reasoning that the AAT declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Amended Application filed at the Federal Circuit Court. Further Grounds with particulars of the grounds will be filed and served in my Amended Notice of Appeal when Court orders it.

3    The appeal first came on for hearing on 12 February 2019. On that occasion, the appellant was unrepresented but indicated that he had spoken to lawyers who might be prepared to act for him in the appeal. In those circumstances, I granted an adjournment to the appellant and made certain directions for the hearing of the appeal on 22 February 2019.

4    As the appellant had foreshadowed, he was able to secure legal representation. In accordance with the directions made on 12 February 2019, the appellant filed written submissions, together with an amended notice of appeal.

5    By the amended notice of appeal filed on 18 February 2019, the appellant sought leave to rely on the following further grounds:

14.     The Federal Circuit Court erred at paragraph 110 in finding Ground 5 of the Appellant’s appeal that “The AAT was in error in not accepting all of the matters set out in Paragraphs .... 82 of the AAT’s decision being findings no reasonable person would have made on the evidence and which findings are unreasonable.” was not made out [CB307], such finding being unreasonable.

Particulars

i.     Paragraph 82 of the AAT decision [CB244] inter alia refers to ‘the Tribunal [being] satisfied that the applicant does not now or in the foreseeable future have a well-founded fear of persecution arising essentially and significantly from one or more of the five Convention reasons if he returns to Sri Lanka’

ii.     The Tribunal formed this view after having taken into account information from DFAT and other sources concerning procedures after returnees arrive at the airport, including the procedures concerning obtaining bail and release, and the requirement for returnees to have guarantors, but without any evidence of, and/or without duly considering or having any regard to, whether the Applicant had any family member who would stand as guarantor. [CB241-244]

15.     The Federal Circuit Court failed to address the AAT’s failure to consider whether the Applicant had or did not have any family member who would stand as guarantor without there being any evidence of potential family members.

Particulars

Paragraphs 108 – 110 of the Federal Circuit Court decision [CB306-307]

16.     The Federal Circuit Court failed to address the AAT’s failure to comply with S 425 (1) of the Act in not inviting the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

Particulars

Paragraphs 108 – 110 of the Federal Circuit Court decision [CB306-307]

6    At the hearing on 22 February 2019, counsel for the appellant clarified that reliance was not placed upon the grounds which had been put to the Federal Circuit Court as indicating jurisdictional error on the part of the Tribunal. That is, the only relevant grounds are now those identified at [5] above.

7    The hearing of the appeal proceeded on the basis that, if the three new grounds contained in the amended notice of appeal had sufficient merit, then leave to argue those grounds would be granted.

8    The three new grounds of appeal revolve in substantial part around T[73] of the Tribunal’s decision. That paragraph concerned the treatment of returnees to Sri Lanka who had departed illegally and who would likely be charged with offences related to their illegal departure. It included the sentence:

All persons are granted bail on personal recognisance, with the requirement for a family member to stand as guarantor.

9    Paragraph T[73] followed the Tribunal’s consideration of a report prepared by the Department of Foreign Affairs and Trade (DFAT) titled ‘Country Report: Sri Lanka’ dated 18 December 2015. The Tribunal set out three paragraphs from that report at T[72]. Included in what the Tribunal set out was the following:

DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines have been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case by case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them.

10    At T[77], the Tribunal noted that the appellant was not claiming to have, and there was no evidence to suggest that he had, been involved in people smuggling. At T[78], the Tribunal accepted, on the basis of the country information it had reviewed, that there was a real chance the appellant, upon returning to Sri Lanka, might be arrested and imprisoned for a few days on remand because he had departed the country illegally. It also accepted that the conditions in prison might be crowded and poor and that the applicant might be questioned and fined. The Tribunal then stated:

However, the Tribunal gives weight to DFAT’s advice that for offences committed under the Act, a prison sentence and/or a fine of up to LKR 200,000 may be applicable, but this was seldom enforced. The Tribunal gives weight to DFAT’s advice that DFAT has not received and is unaware of allegations of mistreatment of returnees in general at the airport or in remand.

11    At T[86], in the section of its reasons dealing with complementary protection, the Tribunal stated:

… The Tribunal accepts that the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant, and he may have to pay a fine. The Tribunal accepts that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a Court to apply for bail, which is routinely given. The weight of country information also indicates that the prospect of the applicant being detained for a prolonged period of time and paying a fine to be remote and not likely to result in hardship to the applicant that constitutes significant harm, as contemplated by section 36(2A) of the Act.

Ground 1

12    The first of the appellant’s new grounds of appeal was that the Tribunal committed a jurisdictional error in that it reached a conclusion that was legally unreasonable. The substance of the complaint was that the Tribunal found that a family member would have to guarantee the appellant’s release on bail and then proceeded to assume that there was a person available to provide that guarantee, but did so in circumstances where there was no evidence that there was any such person to stand as guarantor. This ground of appeal hinges upon a conclusion that the Tribunal proceeded on the basis that, in all circumstances, a guarantor would be required in order for the appellant to be released.

13    In my view, for the reasons which follow, that conclusion should not be drawn.

14    The Tribunal’s reasons contained detailed extracts from country information. There were also references to, and extracts from, country information in the delegate’s decision and in submissions which the appellant had put to the Tribunal at the Tribunal hearing. In none of the information referred to or set out was there stated to be a “requirement [in all circumstances] for a family member to stand as guarantor” in order for a person to be released once they had been detained on return to Sri Lanka on the basis that they had illegally departed.

15    When the reasons of the Tribunal are read as a whole (in particular having regard to T[78] and [86]), it is apparent that the sentence in T[73] – suggesting that there is, in all circumstances, a requirement for a family member to stand as guarantor – must be in error. It may be that the Tribunal meant to say that there was a “possible requirement for a family member to stand as guarantor” (underlined word added). This seems likely, given that T[73] follows immediately upon T[72], in which the DFAT country report was set out, indicating that there “may be” a requirement of a family member to act as guarantor.

16    In any event, the Tribunal’s consideration of the issue led it to the ultimate conclusion that the appellant would likely be detained, but that he would also likely be released upon payment of a fine: T[86].

17    It is relevant to note that the appellant in his statutory declaration dated 11 January 2013 indicated that he had been in communication with his wife since he had left Sri Lanka. It is also relevant to note that the delegate in her decision dealt with the issue of unlawful departure from Sri Lanka. The delegate stated that the applicant had not expressly claimed possible mistreatment as a returnee, but that she had turned her mind to the issue in any event. The delegate referred to country information, including the DFAT ‘Country Information Report: Sri Lanka’ dated 3 October 2014.

18    Before the Tribunal, the appellant was represented by a migration agent. The agent provided submissions to the Tribunal dated 18 February 2016. In those submissions the agent addressed the issue of illegal departure in some detail. In particular, the agent referred to the DFAT country information reports dated 31 July 2013, 3 October 2014 and 16 February 2015.

19    The July 2013 DFAT country information report included the following:

Since November 2012, Sri Lankan irregular maritime arrivals (IMAs) returned from Australia have been charged under the I&E Act for offences related to departing Sri Lanka and remanded in police custody until they are presented to a magistrate at the first available opportunity. The International Organization for Migration (IOM) has advised DFAT that, from their experience in delivering post-arrival support for voluntary returnees from Australia, those who have departed illegally under Si Lankan law have been arrested by the police at the airport. They have been taken by the police from the airport and presented at the Negombo Magistrates Court at the first available opportunity. The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.

20    The appellant did not raise as a part of his case either before the delegate or before the Tribunal that: (a) a member of his family would be required to provide a guarantee in order for him to be released from detention; or (b) there was no such family member available to provide such a guarantee in the event it were required.

Ground 2

21    The second ground of appeal was that the Federal Circuit Court failed to address the Tribunal’s failure to consider whether the applicant had a family member who would stand as guarantor.

22    This ground of appeal necessarily fails for the reason that the correct reading of the Tribunal’s reasons is not that a guarantor was required in all circumstances. In any event, the appellant did not raise as an issue an inability to have a family member provide a guarantee or stand as guarantor and had given evidence, by way of his statutory declaration, of ongoing contact with a family member (his wife) who one would naturally conclude might be available to stand as guarantor.

23    The appellant’s submissions made to the Tribunal through his migration agent on 18 February 2016 specifically referred to his statutory declaration of 11 January 2013 and confirmed that he continued to rely upon it. There was nothing to suggest that the appellant’s wife would not be able to stand as guarantor.

Ground 3

24    The third ground of appeal was, in substance, that the Federal Circuit Court erred in not addressing the Tribunal’s asserted failure to comply with s 425 of the Migration Act 1958 (Cth) in not inviting the appellant to give evidence and present arguments in relation to the question whether there would be a family member who could stand as guarantor.

25    Again, however, this ground of appeal proceeds from the assumption that the Tribunal considered it dispositive to the application before it that there was a requirement for a family member to stand as guarantor. I have concluded, for the reasons identified, that the Tribunal’s reasons are not to be understood in that way.

26    In any event, there was no breach of s 425 in circumstances where the consequences to the appellant of returning to Sri Lanka having illegally departed were drawn to his attention and the appellant was aware of the possibility of requiring assistance from family members as well as paying a fine.

27    In my view, in the circumstances outlined earlier, the appellant has not shown either that the Federal Circuit Court erred, or that the Tribunal failed to comply with s 425 of the Act.

Conclusion

28    For those reasons, leave to raise the three proposed new grounds of appeal is refused.

29    As mentioned, the appellant formally abandoned the only remaining ground of appeal contained in his amended notice of appeal, which sought to engage the 13 grounds of judicial review before the Federal Circuit Court.

30    Accordingly, the appeal must be dismissed with costs.

Associate:

Dated:    22 February 2019