FEDERAL COURT OF AUSTRALIA

BEN17 v Minister for Immigration and Border Protection [2019] FCA 1232

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs of the appeal fixed in the sum of $7,241.

3.    Within 30 days from the date of this order the Minister may file and serve any application for orders that the costs of these proceedings be paid by a third party.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) delivered on 22 February 2019. The FCC dismissed an application for a constitutional writ within that Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the Act) in respect of a decision of the Immigration Assessment Authority (the Authority) under Part 7AA of the Act made on 22 February 2017. By that decision the Authority affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the appellant a safe haven class visa.

Background

2    The appellant claims to be a Hindu Tamil from a northern province of Sri Lanka. He based his claim for a safe haven visa on his alleged fears of harm from the Sri Lankan Army and the Sri Lankan Criminal Investigation Department (CID). He claimed those fears arose due to his Tamil ethnicity and alleged imputed association with the Liberation Tigers of Tamil Eelam (LTTE).

3    The appellant had attended school until grade 10. From 1995 to 2012 he was employed in various activities including, for a period of 2 years, self-employed as a grocery store owner.

4    The Authority accepted that between 2003 and 2012 he had volunteered with the Sri Lankan Society of the Red Cross and was the secretary of the local village development board and worked for the Rural Development Society. The appellant alleged that these societies were supportive of the Tamil National Alliance.

5    The appellant claimed that the Sri Lankan Army approached him and threatened him if he continued to be involved in the political activities of the Tamil National Alliance. He said that on a number of occasions he was detained by members of the CID, taken away and questioned and interrogated about his involvement with the LTTE and his volunteering activities. He said that he was mistreated during his interrogation and released.

6    He also claimed that the CID came to his home and told his wife that they required to speak with him. He further claims that in April 2012 he was located by members of the army and they threatened to shoot him if he continued to work with the Tamil National Alliance.

Departure from Sri Lanka and arrival in Australia

7    The appellant departed Sri Lanka in September 2012. He claims that after he left the CID continued to enquire of his wife as to his whereabouts.

8    He arrived in Australia in September 2012 as an unauthorised maritime arrival.

Decision of the Authority

9    The reasons of the Authority disclose that it substantially accepted much of the appellant’s claims. However, it concluded that although he was detained on occasion, the fact that he was not arrested and formally charged indicated the CID did not consider him to be involved with the LTTE. It also accepted the appellant was engaged in volunteering activities with local groups as he claimed. However, it noted that any harassment which he received from the Sri Lankan Army occurred some years after he commenced volunteering and around the time of elections. That was consistent with Country Information about activities in Sri Lanka at the time.

10    Although the appellant claimed to be a prominent speaker at political meetings, the Authority concluded that this was not the case. That was because of his failure to mention that matter when it was appropriate and convenient for him to do so. It determined that he had a limited and relatively low profile in political activities.

11    The Authority did not accept the appellant was subjected to the degree of monitoring and harassment by the CID which he claimed occurred in 2011 and 2012. It reasoned that, if he was considered to be of interest to them, they would have been able to locate him as and when they chose given that he lived and worked in the community.

12    The Authority was not satisfied that, despite some initial inquiries being made of him by the Authority, the appellant was the subject of interest by the security forces. It did not accept that either the Sri Lankan Army or the CID were searching for him.

13    The Authority also took into account recent Country Information which showed that the political situation in Sri Lanka had improved significantly in recent years. In particular, the Tamil National Alliance was an orthodox parliamentary opposition party in the new parliament.

14    It was also determined that the appellant had not continued to be politically active in relation to politics in Sri Lanka, and nor would he do so on his return. The Authority was not satisfied that he would be monitored or targeted on his return for any past involvement with the Tamil National Alliance.

15    The Authority also concluded that the appellant would not face harm on his return because he was an illegal departee or because he was a failed asylum seeker. Whilst it was accepted that he would be subject to prosecution under the Immigration and Emigrants Act 1949 and would be subject to a fine, there was no suggestion that that Act was applied in any discriminatory way. It was accepted that the appellant may be detained on his arrival in Sri Lanka and possibly at the airport for 24 hours or for a day or two thereafter. However, even though the conditions would not be good, that was not a consequence of any discriminatory conduct on the part of the government. It noted that the fine imposed on the appellant is likely to be relatively minimal and he will be given time to pay it.

16    The Authority also considered the complementary protection provisions and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm. However, for the reasons which it had already identified, it concluded there would be no such real risk of significant harm. It reiterated that whilst he might be held on remand in poor conditions, that would only be for a short time and that there was no intention by the State to inflict pain and suffering or degrading treatment. In the result, the decision under review was affirmed.

Decision of the FCC

17    The application to the FCC was made on broad and generalised grounds of:

(1)    jurisdictional error;

(2)    bias based on conscious or unconscious prejudice by ignoring relevant material;

(3)    identifying the wrong issue on a wrong question.

18    As the primary judge noted, directions were made for the filing of an amended application, affidavit evidence and submissions by the appellant. No documents were filed. There was no elucidation for the primary judge of the bare assertions in the application for review.

19    The primary judge’s reasons were necessarily brief. The bare assertion of a jurisdictional error was identified as being insufficient to make out any ground for relief. The primary judge did not identify any error in the Authority’s reasons. The primary judge also identified that an allegation of bias must be clearly alleged and properly proved and that the generalised assertion of bias in an unparticularised form is not capable of making out any relevant error. That ground failed. The primary judge also identified that there was nothing on the face of the reasons to suggest that the Authority did not bring a fair and unbiased mind to the consideration of the issues.

20    Further, the primary judge was not able to identify any wrong issue or wrong question being asked by the Authority.

21    In the result the application was dismissed.

Proceedings before this Court

22    The grounds of appeal before this Court are equally vague. They are:

(1)    The Federal Circuit Court judge made an error by not finding that the Immigration Assessment Authority’s decision was affected by bias based on conscious or unconscious prejudice by ignoring relevant material.

(2)    The Federal Circuit Court judge made an error by not finding that the Immigration Assessment Authority’s decision identified a wrong issue on a wrong question.

23    The appellant was directed to provide written submissions in support of his appeal. None were provided.

24    The two grounds of appeal advanced to this Court are broadly similar to the grounds advanced before the primary judge.

25    When the matter was called on for hearing the appellant appeared by himself. He was assisted by an interpreter. He claimed that he had engaged a lawyer to represent him at the hearing and that he expected that the lawyer had not appeared. He was given time to contact the lawyer. Ultimately, it appears that he was mistaken as to his engagement of a lawyer for these proceedings. It seems that he believed that the lawyer who represented him before the Authority would also represent him before this Court although he had made no arrangements to that effect.

26    In the result the appellant appeared before this Court unassisted save for the interpreter. He was not able to make any submission which advanced the grounds of appeal as stated in the notice of appeal.

Ground 1 – bias

27    The first ground alleging bias is vague and unparticularised. That is insufficient to raise any arguable ground of appeal. The absence of any explanation as to how the Authority may have held some prejudice against the appellant or how it may not have brought a fair and open mind to its deliberations was concerning.

28    As the Minister submitted, it is well established that an allegation of bias is a very serious matter which ought to be made distinctly and clearly proven. A heavy onus rests upon an appellant to prove that such bias existed: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445, [51] per Allsop CJ. In this case the allegation of bias has not been made distinctly and nor has it been clearly proven. For that reason alone the ground cannot succeed.

29    Further, there is nothing in the decision of the Authority which suggests in any way the existence of bias on its part. Nor is there any basis for thinking that a reasonable apprehension of bias existed. The relevant test is whether a fair-minded lay observer, properly informed as to the nature of the decision to be made, the matters in issue and the conduct complained of, might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1, [85]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [2].

30    As mentioned above, there is no basis for perceiving the existence of any actual bias or any reasonable apprehension of bias. On its face the decision properly traverses all relevant issues and weighs up the evidence.

31    In the circumstances there was no error in the primary judge determining that the appellant had failed to establish any foundation for an allegation of bias.

Ground 2 – wrong issue or question

32    As was the case before the FCC, the appellant did not particularise the issue or question which he claims was wrongly identified.

33    In the absence of any particulars it is not possible to give this ground any sensible meaning.

34    As the facts set out above disclose, the Authority identified the appellant’s claims for protection and considered them against the evidence and the Country Information which it had. Its findings were available on the material before it and provided a sound basis for the conclusions reached: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [59]-[61].

35    It is for the Authority to determine on the basis of the facts before it whether the circumstances give rise to an entitlement to protection. These are matters which are within the fact finding purview of the Authority: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 281-282. In this matter the Authority had regard to the criteria in s 36(2)(a), being the convention grounds, and s 36(2)(aa), being the complementary protection grounds, as it was required to do in reviewing the delegate’s decision. After considering the facts it did not accept that either the appellant or his family had any ongoing harassment from the CID or the Sri Lankan Army. Those facts informed its view as to the risk of harm faced by the appellant were he to be returned.

36    The Authority properly considered the risk of harm, if any, faced by the appellant as a result of his illegal departure. It concluded that any such potential harm was not serious. The determination of whether harm is serious or not involves matters of fact and degree: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610, [41].

37    The mere fact that the appellant may be detained on his return to Sri Lanka as a consequence of this contravention of the Immigration and Emigrants Act 1949 does not ordinarily constitute persecution for the purposes of the convention. The enforcement of the law was identified as being non-discriminatory. Further, the Authority concluded that there was no intention to cause the appellant significant harm by reason of poor prison conditions alone: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362.

38    It follows that it has not been shown that the primary judge erred in not detecting that the Authority had identified a wrong issue or wrong question in its determination.

Conclusion

39    It follows that no appellable error has been identified by the appellant. The appeal should be dismissed.

40    There is no reason why costs should not follow the event. The Minister has identified his fixed costs in a short form bill in the amount of $7,241. That amount should be accepted as reasonable on the appeal. The appellant must pay the Minister’s costs of the appeal fixed in the sum of $7,241.

Absence of any reasonable ground of appeal

41    In the course of seeking an adjournment of the appeal the appellant stated from the Bar table that he had been let down by the solicitors he had instructed in the matter. I accepted that for the purposes of the adjournment application but did not accept it for any other purpose. He also told the Court that the solicitors had prepared the notice of appeal and had given it to him to sign and file. Again, I do not immediately accept the veracity of that statement although it is plain that the appellant did not prepare the notice of appeal and it is also plain that it was prepared by a lawyer. It was properly formatted on the correct Federal Court form and has the appearance of having being prepared by a legally trained person. The difficulty is that the document does not bear the name of the solicitor who prepared it. Rule 2.16 of the Federal Court Rules 2011 (Cth) relevantly provides:

2.16    Details at foot of each document

(1)      A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document:

(a)      the name and role of the party on whose behalf the document is filed;

(b)      the name of the person or lawyer responsible for preparation of the document;

(c)      if the party is represented by a lawyer—the telephone number, fax number and email address of the lawyer;

(d)      if the party is not represented by a lawyer—the telephone number, fax number and email address, if any, of the party;

     (e)      the address for service of the party.

42    In this case there is the appearance that a lawyer has prepared the notice of appeal, but has failed to identify themselves in accordance with r 2.16(1)(b). That sub-rule does not only apply where lawyers represent a party in proceedings. Prima facie, there is reason to suspect that the lawyers who provided the appellant with the email which became exhibit 1 in the appeal were also the lawyers who prepared the notice of appeal. In that email the solicitors indicated that they had not reached any view as to whether the appellant had any reasonable prospects of success on the appeal. Despite having that view as at 6 August 2019, it seems that they had previously prepared a notice of appeal alleging, amongst other things, actual bias on the part of the Authority. At present, and in the absence of argument on the point, that allegation appears to be completely unfounded. From this there is a suspicion that the solicitors identified have assisted the appellant in filing a document making a serious allegation against the person constituting the Authority without any foundation whatsoever. Similarly, ground 2 of the notice of appeal was devoid of merit. It may be that, in time, that may be shown not to be the case, but presently that is the conclusion which is most apparent.

43    It is apparent that, one way or another, solicitors have supported the appellant in the commencement of an appeal which was doomed to failure. To date it seems to be apparent that there was no basis for the allegations made in the notice of appeal. Despite that the Minister has been put to substantial expense in dealing with it.

44    In these circumstances, and particularly where it is likely that the order for costs against the appellant will go unsatisfied, the Minister should have leave to bring any application he is advised to for the purposes of seeking orders against any third party to the proceedings.

Associate:    

Dated:    8 August 2019