FEDERAL COURT OF AUSTRALIA

CTF16 v Minister for Immigration and Border Protection [2020] FCA 97

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from orders made by the Federal Circuit Court of Australia on 18 April 2017 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 September 2016. The Tribunal had affirmed a decision of a delegate of the Minister under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the appellants protection visas.

2    The notice of appeal was filed on 8 May 2017, stating three grounds of appeal.

3    On 17 April 2018, a solicitor for the Minister filed an affidavit which disclosed and exhibited a s 438 notice that had been given by the Department to the Refugee Review Tribunal (as it then was) on 14 April 2015, together with the documents referred to in the notice. On 23 April 2018, the Full Court made orders giving the appellants leave to file and serve an amended notice of appeal and for the parties to file further submissions. On 7 May 2018, the appellants filed an amended notice of appeal which added three further grounds of appeal. The grounds claimed that the s 438 notice was invalid and that the appellants had been denied procedural fairness because the giving of the s 438 notice had not been disclosed to them. The appellants also filed submission relating to the three new grounds. On 11 May 2018, the Minister filed supplementary submissions responding to the new grounds of appeal.

4    On 14 May 2018, the Full Court due to hear the appeal made orders adjourning the hearing of the appeal pending the outcome of appeals to the High Court in cases named CQZ15 and BEG15. The appeals to the High Court concerned the question whether the giving of a notice under s 438 of the Act to the Tribunal triggered an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. The High Court delivered judgment on those appeals, and a further case named SZMTA, on 13 February 2019: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA).

5    On 6 August 2019, following the relisting of the appeal for hearing, the Minister filed a further written submission addressing the grounds of appeal concerning the s 438 notice. On 8 August 2019, Counsel for the appellants sent an email to the Court stating that the appellants would not be pressing the grounds of appeal concerning the s 438 notice, and indeed would only be pressing the first ground in the original notice of appeal. At the hearing, Counsel for the appellants stated that the appellants relied on the first and second grounds of appeal; however, in argument it became apparent that the grounds agitated the same issue. As a result, it is not necessary to refer to the s 438 notice or the documents referred to in that notice.

6    The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the primary judge was correct to find that the decision of the Tribunal was not affected by jurisdictional error as alleged: Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1.

7    The proceeding has a lengthy background. Ultimately, the issue in dispute on the sole ground of appeal is short. It focusses on a single sentence in a detailed decision of the Tribunal which was as follows:

The Tribunal does not accept the submission during the hearing that the applicants somehow obtained their passports through bribery or that they left Sri Lanka through bribing officials or with the assistance of an uncle.

8    The appellants contend that the Tribunal erred because the subject matter of that sentence, leaving Sri Lanka through bribing officials or with the assistance of an uncle, was the subject of evidence before the Tribunal, not merely submission. The appellants contend that the finding in that sentence was therefore made on a false factual premise and constituted jurisdictional error, relying on SZRHL v Minister of Immigration and Border Protection (2013) 136 ALD 641 (SZRHL) at [34].

9    For the reasons that follow, I have reached the same conclusion as the primary judge that the sentence in the Tribunal’s decision that is criticised by the appellants does not constitute jurisdictional error.

Background

10    The proceeding has a lengthy background.

11    The appellants are citizens of Sri Lanka. The first appellant is the son of the second and third appellants (his father and mother respectively). The appellants entered Australia in 2011 as the holders of visitor visas.

12    On 12 July 2011, the second appellant lodged an application for a protection visa which included his wife and son as members of the same family unit. The second appellant claimed to fear harm on the basis of his family’s association with the Liberation Tigers of Tamil Eelam (LTTE), relying on the refugee criteria in s 36(2)(a) of the Act. He claimed that he is a Tamil who was born in Jaffna. He claimed that his father was a prosperous farmer who was friendly with Velupillai Prabaharan, the LTTE leader. The LTTE wanted the second appellant and his siblings to join the LTTE, but their father would not allow this and sent the second appellant to Kuwait in 1982. The second appellant lived in Kuwait until 2010, returning to Sri Lanka on various occasions. A central aspect of the second appellant’s claims was that, after returning to Sri Lanka in 2010 in search of his father, he was abducted and held for ransom by paramilitary forces. The second appellant eventually escaped and fled to Kuwait with the aid of his uncle, who was able to bribe Sri Lankan army officials to secure his release. He then travelled to Australia to seek protection.

13    The application was refused by a delegate of the Minister on 12 September 2011. The appellants then applied to the Refugee Review Tribunal (as it then was) for review of the delegate’s decision. On 27 June 2012, the Refugee Review Tribunal affirmed the decision on review. On 22 February 2013, the Federal Magistrates Court dismissed an application for judicial review.

14    On 28 April 2014, the appellant son (the first appellant) made a second application for a protection visa. The appellant parents also applied on the basis that they were part of the same family unit. The appellant son claimed to fear persecution and significant harm in Sri Lanka due to his Tamil ethnicity, Christian religious beliefs, his status as a failed asylum seeker and his fear that a pro-LTTE political stance would be imputed to him (based on his family’s links to the LTTE, his “well-built” physique and his inability to read or write Tamil).

15    On 18 March 2015, a delegate of the Minister refused the second application for protection visas.

16    On 10 April 2015, the appellants applied to the Tribunal (differently constituted) for review of the delegate’s decision refusing the second application. On 18 August 2016 the appellants appeared before the Tribunal to give evidence and present arguments, represented by their registered migration agent. On 6 September 2016, the Tribunal affirmed the delegate’s decision.

The Tribunal proceedings

17    The evidence before the Tribunal included statutory declarations dated 14 August 2016 from each of the appellants and a further statement from the appellant son also dated 14 August 2016.

18    The appellant father made the following claims in his statutory declaration:

•    In 2010, I went to Srilanka in search of my father to Vanni. Then I was abducted by the Paramilitary at Mullaitivu and held for ransom by them. I then fled with the help of my uncle … to Kuwait paying the ransom. My wife and child followed soon after.

…

•    In 2011 my company was planning to phase out, this would have lead them to terminate my contract and return me back to Srilanka

•    As going back to Srilanka would put my family and my lives in danger, I therefore applied for leave and fled to Australia on a tourist visa, hoping to seek protection from Australia.

19    The appellant son made the following claims in his statutory declaration:

•    When we went to Sri Lankan in 2010, I was … years old and was with my mother. My father was abducted and held for ransom by the authorities.

•    I had to escape with my mother with the help of my dad's uncle ... He had contacts with the Sri Lankan Army officials, who at the time of the incident helped us escape after bribe was given through him to the army.

20    The appellant wife made the following claims in her statutory declaration:

•    In 2010 I visited Srilanka with my husband and son. That time my husband was abducted by the Paramilitary and held for ransom, survived the ordeal and later fled for Kuwait

•    Subsequently my son and I followed him to Kuwait, with the help of …

21    In his statement also dated 14 August 2016, the appellant son made the following claims:

Incident in 2010

…

23. When we went in 2010, I was … and was with my mother. My father was abducted and held for ransom by the authorities. I had to escape with my mother with the help of my dad’s uncle ... Due to his business connections and wealth, this uncle had contacts with the Sri Lankan chief Army officials, who at the time of the incident helped us escape after a bribe was received.

22    The Tribunal set out in some detail the appellants’ claims and evidence (at [7]-[31]). Relevantly, at [19]-[26], the Tribunal referred to the statutory declarations made by the appellants on 14 August 2016 and the further statement made by the appellant son on the same date and reproduced most of that evidence including the passages extracted above.

23    Based on its assessment of all the evidence, the Tribunal did not accept that the appellants were truthful witnesses, concluding (at [33]):

The Tribunal considers that the applicants have manufactured new claims and altered aspects of their other claims following the failure of their initial application for Protection visas which were made in 2011 and were unsuccessful before the Department, the RRT and the Federal Circuit Court. In the Tribunal's view the applicants have altered and embellished their original claims in this application in an attempt to establish that [the appellant father] had a significant profile ... Since the initial application was made, they have also added claims regarding [the appellant wife’s] ... The Tribunal does not accept the applicants (sic) explanations for their failure to raise these claims or their reasons as to why they have significantly altered their claims and evidence more than five years after their arrival in Australia in May 2011.

24    In respect of the appellants’ claims and evidence concerning their return to Sri Lanka in 2010, the Tribunal made the following findings (at [57]):

The Tribunal does not accept that when [the appellant father] returned to Sri Lanka in 2010 that he was held for ransom or detained by paramilitaries and subsequently fled Sri Lanka by bribing officials with the help of his uncle. Nor does the Tribunal accept that the applicants' uncle had to flee Sri Lanka because he assisted the applicants to escape.…The Tribunal instead considers that [the appellant father] returned to Sri Lanka with his wife and 10 year old son to visit his family members at a time when the war had ceased and he was aware he was of no interest to the authorities or paramilitary groups or others and he and his family would be safe in Sri Lanka. The Tribunal does not accept that the fact that [the appellant father] left Sri Lanka a week before his wife and son indicates that he "fled" Sri Lanka for Kuwait. The Tribunal considers it likely that his wife and son remained in Sri Lanka for additional time with family members whilst [the appellant father] returned to work in Kuwait.

25    Having made those factual findings (amongst others), the Tribunal turned to consider whether the appellants would face a risk of harm upon returning to Sri Lanka. The Tribunal summarised its earlier factual findings by recording that (at [59]):

The Tribunal has not accepted the applicants’ claims regarding their experience in Sri Lanka or their reasons for seeking protection in Australia. The Tribunal has considered nevertheless, the situation for the applicants upon their return to Sri Lanka, given that they are of the Tamil race, from the northern part of Sri Lanka, have sought asylum overseas, lived outside of Sri Lanka for a significant period, and have recently converted to Christianity.

26    The Tribunal then recorded a number of matters put to them during the Tribunal hearing for a response, including that they had left the country legally and there was nothing to indicate they would be questioned at the airport or have any difficulties returning to Sri Lanka given that they departed the country legally (at [59]).

27    The Tribunal then restated its findings as to the circumstances in which the appellants returned to and then departed Sri Lanka in 2010 in a passage central to this appeal (at [61]):

As stated above, the Tribunal does not accept that [the appellant father] ... The Tribunal has found above that they [the appellants] lived outside of Sri Lanka for many years and willingly returned to Sri Lanka. The Tribunal has not accepted that they attracted adverse attention of the authorities during their visits to Sri Lanka or that they were of any interest to paramilitary groups or persons or groups formerly part of the LTTE. The Tribunal does not accept the submission during the hearing that the applicants somehow obtained their passports through bribery or that they left Sri Lanka through bribing officials or with the assistance of an uncle. The Tribunal instead considers that they visited Sri Lanka for a holiday and to see family members in 2010 and left the country legally to return to their home in Kuwait where they had lived for an extended period. (emphasis added)

28    The Tribunal ultimately concluded that none of the appellants met the criteria in ss 36(2)(a) or (aa) of the Act for a protection visa.

Decision of the Federal Circuit Court

29    On 20 September 2016, the appellants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court under s 476 of the Act. An amended application was filed on 18 April 2017.

30    Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

31    The appellants raised two grounds of review. The primary judge dismissed both grounds. In this appeal, the appellants only appeal in respect of the second ground. In respect of the second ground of review, the primary judge concluded (at [16]):

It is apparent from a fair reading of the Tribunal’s reasons without a keen eye for error, that the Tribunal correctly identified the applicants’ evidence in respect of allegedly leaving Sri Lanka due to alleged bribery and made an adverse finding in that regard that was open to the Tribunal. The reference to submission was clearly a reference that included the evidence identified by the Tribunal.

Consideration of appeal

32    The appellants’ submissions can be stated shortly. At paragraph 61 of its reasons, the Tribunal stated that: “The Tribunal does not accept the submission during the hearing that the applicants somehow obtained their passports through bribery or that they left Sri Lanka through bribing officials or with the assistance of an uncle”. The appellant submitted that, in that sentence, the Tribunal made an adverse credit finding based on a false premise; namely, that the appellants’ claims relating to how they left Sri Lanka in 2010 were merely the subject of a submission during the hearing, whereas those claims were the subject of evidence filed before the hearing. The appellants relied on the reasoning of Logan J in SZRHL at [34]:

As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the appellant son’s credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.

33    In my view, the appellants’ submission must be rejected. It fails to have regard to the whole of the Tribunal’s reasons and fails to read paragraph 61 in context.

34    The Tribunal did not overlook the evidence adduced by the appellants concerning the circumstances in which they allegedly left Sri Lanka in 2010. The Tribunal recited that evidence fully at paragraphs 19 to 26 of its reasons. The Tribunal then made findings about that evidence at paragraph 57, rejecting the evidence. It is plain from those paragraphs that, not only was the Tribunal aware of the appellants’ evidence, it made findings adverse to the appellants based on detailed reasoning.

35    Paragraph 61 appears in the section of the Tribunal’s reasons in which it considered whether the appellants faced a risk of harm if they returned to Sri Lanka. Understood in that context, it is clear that paragraph 61 is a restatement, or summary, by the Tribunal of its earlier factual findings. As I have observed, those earlier findings were made in full knowledge of the appellants’ evidence, but the Tribunal rejected the evidence.

36    In the sentence of paragraph 61 that is the subject of the appeal, it is not entirely clear why the Tribunal used the phrase “submission during the hearing”. There are a number of possible explanations, none of which involve jurisdictional error. It is possible, as the primary judge found, that the phrase was intended by the Tribunal to include the evidence before the Tribunal. It is also possible that the choice of words was somewhat imprecise. Regardless, in light of the clear findings that had been earlier made by the Tribunal, there is no basis for a conclusion that the Tribunal made an adverse credit finding based on a false premise.

Conclusion

37    For the foregoing reasons, the appellants have failed to establish that the Tribunal’s findings at paragraph 61 disclosed jurisdictional error. I will dismiss the appeal with costs.

Associate:

Dated:    14 February 2020