FEDERAL COURT OF AUSTRALIA

BDE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 160

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the costs of the First Respondent, 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 THE TRANSCRIPT)

KERR J:

Background

1    The Applicant, BDE18, is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia in October 2012. In 2013, he lodged an invalid application for a Protection (Class XA) Visa.

2     In 2017, the Applicant lodged an application for a Safe Haven Enterprise (Subclass 790) Visa (SHEV). In June 2017, a delegate of the Minister for Immigration and Border Protection (the Delegate) refused him the visa he had sought on the basis that Australia did not owe him protection obligations.

3    On 29 June 2017, the matter was automatically referred to the Immigration Assessment Authority (IAA) pursuant to the fast-track provisions of the Migration Act 1958 (Cth) (Migration Act). The IAA affirmed the Delegate’s decision.

4    The material paragraphs of the IAA’s consideration of the review before it, insofar as the matter currently before the Court turns upon the IAA’s reasons, relate to a claim advanced by the Applicant concerning involvement of his brother in the activities of the Liberation Tigers of Tamil Eelam (LTTE). Those paragraphs are as follows:

19.    I note that in his protection visa interview, the applicant stated that he had not had any contact with his brother (N) since his recruitment to the LTTE (which he dated to 2007 in the interview). But at other times he noted that his brother had left the LTTE after 9 months and married. The applicant has provided a photo of a man, woman and very young child. He claims the photo is of his brother (N) and his brother’s wife and their child. There is no way for me to determine conclusively whether the photo is of the applicant’s brother (N) and his family, but weighing the evidence, I am prepared to accept the applicants [sic] claim that it is a photo of his brother, his sister-in-law and their child.

20.    This photo suggests to me that even if the applicant’s brother was a member of the LTTE at some period of time, he was able to depart the organisation, marry and have children as the applicant has himself claimed. I conclude that the applicant’s brother was forcibly recruited into the LTTE around 2005 and that he spent approximately nine months with the organisation, before he left, married and had a child.

5    On 14 February 2018, Applicant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the decision of the IAA. The matter was listed for a directions hearing before a Registrar of that court.

6    However, the Applicant did not attend that hearing. On 6 February 2019, the Registrar therefore dismissed the application in default of appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

7    By an application dated 15 May 2018, the Applicant applied to the FCCA to set aside the orders dismissing his judicial review application. He sought reinstatement of that application. He further sought leave to file an amended application for review. That application was heard by a judge of the FCCA on 25 October 2019. It was dismissed by orders dated 1 November 2019.

Proceedings In this Court

8    By an originating application under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), in this Court the Applicant seeks to quash the decision of the FCCA on the basis that it was unreasonable or illogical and irrational.

9    The Minister observes that the more customary and usual course by which the Applicant might have challenged the decision of the FCCA would have been to seek leave to appeal from that decision under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). The Minister submits that the Applicant having instead pursued his application under s 39B of the Judiciary Act, the grounds of review are narrower. Against that background the Minister opposes the application, contending that the reasons of the FCCA disclose a logical and evident basis for declining to reinstate the review proceedings.

10    However, the Minister further submits that even if the alleged error were to be assessed having regard to ordinary principles that govern appeals from the FCCA, no error of any kind is discernible in the reasoning of the learned primary judge.

11    It is now convenient to set out how those circumstances which are briefly referred to above arose. The gravamen of the Applicant’s claim in seeking a SHEV is that he feared harm from Sri Lankan authorities due to the prior involvement of both himself and his brother with the LTTE. The IAA had accepted aspects of his account in that regard. It had accepted that the Applicant had been forcibly recruited to the LTTE, albeit briefly, around 2005. It had further accepted and that his brother had been recruited for a nine month period around the same time and had later disappeared, although it did not accept that that disappearance had been due to his prior involvement with the LTTE. The IAA had concluded however that other aspects of the Applicant’s account, particularly his claim of mistreatment by authorities due to his LTTE links, were either exaggerated or fabricated.

12    It is not in contest that the Applicant advanced a single ground in his draft amended application for review in the proceedings before the FCCA. In pressing his application for reinstatement before that court, he explained that he had not attended the relevant hearing because of mental health problems. As the primary judge noted at paragraph 12:

12.    When asked whether he sought to further explain his absence at the directions hearing on 6 February 2019, the applicant said:

I received a letter about that hearing, but I was not able to attend because of the anxiety I was going through. And when I think about going back to Sri Lanka I am very stressed. And my mental health was affected because of that.

...

The main reason for my failure to attend the hearing is the forgetfulness and my mental health issues

13    The learned primary judge set out, at [9]-[10] of her Honour’s reasons, the principles that she understood applied in determining whether or not the Court should exercise its discretion to grant an application for reinstatement. Her Honour referred to the three factors set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ), which applied to the circumstances of BDE18’s application were as follows:

(1)    Whether there was a reasonable excuse for BDE18’s non-attendance at the directions hearing on 6 February 2019; and

(2)    The existence and nature of any prejudice which might flow to the Minister should the application be reinstated, and whether any such prejudice could be assuaged by an adjournment, an order for costs or other relief; and

(3)    Whether BDE18 had a reasonably arguable prospect of success on the substance of his application, if it were reinstated.

14    The learned primary judge then cited the comments of her Honour Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15), observing that an arguable case is one that:

is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus at the level of assessing whether a ground is ‘arguable’, the court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.

15    In my view, the learned trial judge set out appropriately the principles to which she was required to have regard in determining BDE18’s application.

16    Having done so, her Honour then gave consideration to the rival submissions that had been advanced as to whether or not the Applicant had provided a reasonable excuse for his non-attendance at the directions hearing on 6 February 2019. Contrary to the submissions advanced on behalf of the Minister, the learned trial judge concluded that the Applicant had established a reasonable excuse for his failure to attend that hearing.

17    As to the second factor to which MZYEZ required the learned primary judge to have regard, the Minister properly conceded that any prejudice arising from the reinstatement of the Applicant’s claim could be dealt with simply by an order for costs.

18    The learned primary judge therefore turned to the critical question: whether the Applicant had a reasonably arguable prospect of success on the substantive application. I refer to that issue as the critical question because - as her Honour Justice Mortimer noted in CAL15 - in determining whether or not to exercise the Court’s discretion in matters of this kind that consideration must play a particularly significant part, as:

if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

19    The learned primary judge therefore turned to the ground that had been advanced in the proposed amended application before that court, which was as follows:

The second respondent fell into error by making an illogical or irrelevant consideration in relation to photographic evidence provided by the applicant.

Particulars

The applicant provide a photograph of a man, woman and very young child which he claimed was photo of his brother (N) and his brother’s wife and child (par 19).

The Immigration Assessment Authority stated that there ‘is no way for me to determine conclusively whether the photo is of the applicant’s brother (N) and his family’ (par 19).

The applicant has a step-brother, brother and three sisters. The photo could have been the either the step-brother or brother.

On the basis of the photograph the IAA drew an inference and reached a conclusion that was based on an illogical or irrelevant consideration.

20    The learned trial judge drew attention to certain inconsistencies in the Applicant’s evidence regarding his and his brother’s links to the LTTE. At [32] of her Honour’s reasons, she had regard to the following finding of the IAA:

32.    In the context of considering these claims of the applicant’s links to the LTTE, the IAA stated:

I note that in his protection visa interview, the applicant stated that he had not had any contact with his brother (N) since his recruitment to the LTTE ... But at other times he noted that his brother had left the LTTE after 9 months and married.

(Footnote omitted).

21    Her Honour at [33] drew attention to another finding made by the IAA:

33.    In this context, the IAA further stated:

The applicant has provided a photo of a man, woman and very young child. He claims the photo is of his brother (N) and his brother’s wife and their child. There is no way for me to determine conclusively whether the photo is of the applicant’s brother (N) and his family, but, weighing the evidence, I am prepared to accept the applicant’s claim that it is a photo of his brother, his sister-in-law and their child (emphasis added).

(Footnote omitted).

22     Her Honour thereafter reasoned as follows:

34.    The IAA went on to say:

This photo suggests to me that even if the applicant's brother was a member of the LTTE at some period of time, he was able to depart the organisation, marry and have children as the applicant has himself claimed. I conclude that the applicant's brother was forcibly recruited into the LTTE around 2005 and that he spent approximately nine months with the organisation, before he left, married and had a child.

35.    The IAA concluded:

Given these findings and the applicant's own assertion that his brother disappeared from his place of employment I am not satisfied by the applicant's claims that his family have heard anything from his brother since he joined the LTTE. Having considered all of the evidence I am willing to accept that the applicant's brother disappeared in early 2009. However, noting his misleading claims about contact with his brother, and his tendency to exaggerate some of his claims I am unpersuaded that the disappearance of his brother had anything to do [with] the applicant's links, however tenuous, to the LTTE, or resulted from his brother's own links to the organisation. Given that the applicant has reported he was at work when he disappeared, I do not accept that the applicant's brother was in hiding at the time of his disappearance,

36.    By this ground, the applicant claimed:

On the basis of the photograph the IAA drew an inference and reached a conclusion that was based on an illogical or irrelevant consideration.

37.    It was not clear which conclusion reached by the IAA was the subject of this complaint. When invited to expand on this in his oral submissions, the applicant did not provide any further clarification.

38.    The Minister said it understood this to be a challenge by the applicant of the IAA's conclusion that the brother's disappearance was not due to any links with the LTTE. A fair reading of paragraph [20] of the IAA's decision supports this interpretation.

39.    It is submitted on behalf of the Minister that the applicant's sole ground of review has no reasonable prospects of success.

40.    Noting that at this stage of the proceedings I must consider the material before me at an impressionistic level, I agree with this submission.

41.    The IAA accepted the applicant's submission that the photograph depicted his brother, his sister-in-law and their children, despite noting it was not in a position to determine this on a definitive basis. This was a conclusion reached in the applicant's favour.

42.    Ultimately, the IAA did not rely solely on the photograph in concluding the brother's disappearance was not a consequence of his links with LTTE. Rather, it was based on other concerns the IAA had regarding the applicant's credibility.

43.    As stated, it is not clear what error was asserted in relation to the photograph. But in light of the IAA's findings as to credibility, even if the IAA did make an error in this regard, it does not render the ultimate conclusions reached illogical or irrational.

44.    Having regard to the IAA's findings and the evidence before the IAA in its totality, the applicant has not established that the IAA's conclusions were irrational.

(Footnotes omitted).

23    In this Court, the Applicant’s advances the following proposition:

1. The decision of the Federal Circuit Court was affected by unreasonable [sic] or alternatively, illogical or irrational in determining that the application should not be reinstated despite medical evidence explaining why the Applicant could not attend his previous FCC hearing.

Particulars

The Federal Circuit Court’s decision was unreasonable as it failed to properly examine the reasonably arguable prospects of success of the substantive application when considering the IAA’s determination of credibility of the photograph in relation to the Applicant’s brother’s alleged disappearance.

24    Insofar as Ground 1 might be understood to contend the FCCA erred by finding the application should not be reinstated despite medical evidence explaining why the Applicant could not attend the relevant hearing, I observe that it is clear that the FCCA rejected the Minister’s contention that his health issues were not a reasonable excuse for his failure to attend.

25    The critical issue was therefore whether balancing the three considerations to which the learned primary judge had drawn attention, there was anything in the proposed ground which could reasonably have been upheld as a proper basis of review. That issue was to be considered having regard to the observation of her Honour Mortimer J in CAL15 that if the grounds of proposed review, however advanced, are insusceptible to success then the case for leave must fall away.

26    In the latter regard, what is advanced in the statement of claim under the heading “Particulars”, is that the FCCA’s decision was unreasonable as it failed properly to examine what is asserted to be the reasonably arguable prospects of success of the substantive application when considering the IAA’s determination of credibility of the photographic evidence concerning the Applicant’s brother.

27    In my view, that ground clearly cannot succeed. Two things can be immediately said. First, the relevant finding of the IAA (to which have earlier referred), did not reject the proposition that the relevant photograph depicted the Applicant’s brother, his brother’s wife, and their child. Rather, while noting that there was no way for it to determine conclusively what the photograph showed, the IAA was prepared to accept the Applicant’s claim as to what the photograph depicted.

28    Against that background, the Minister submits as follows:

19.    As to particular (a), the amended ground of review only sought to challenge a narrow, discrete finding of the Authority regarding the photographic evidence. It is submitted that both the FCCA’s main reasons for finding that this ground had no reasonable prospects of success, in that the applicant could not establish the high standard required to impugn the Authority’s decision as illogical or irrational, have a proper and evident basis:

(a)    first, that the [IAA] had accepted the photograph was of [BDE18’s] brother was plainly stated in the [IAA’s] decision at [19]-[20]. It is not evident how the applicant could impugn the [IAA’s] decision on the basis of a finding that was in his favour, and that he had asked the [IAA] to make; and

(b)    second, the other adverse credibility findings supporting the [IAA’s] conclusions regarding the applicant’s brother are plainly stated in the [IAA’s] decision at [21] to [22]. The applicant did not seek to impugn these findings before the FCCA. The FCCA was entirely correct to find any error by [the IAA] regarding the photograph would not render its ultimate conclusions illogical or irrational.

(Footnotes omitted).

29    I accept the Minister’s submissions as advanced in those regards. I accordingly accept the Minister’s further submission that there is no basis on which to impugn the decision of the FCCA as being unreasonable, or on which to find that the learned primary judge did not properly consider the Applicant’s prospects of success should his application be reinstated. That is particularly so having regard to the applicant’s failure to provide any clarification of the ground of review at the hearing of his application for reinstatement: a point to which the learned primary judge also drew attention in her Honour’s reasons

30    In my opinion no error of law, let alone jurisdictional error, is established. I am therefore not required to consider differences between the approach to be taken by this Court in an application brought under s 39B of the Judiciary Act, and the approach to be taken in an application for leave to appeal from a decision of the FCCA pursuant to s 24(1A) of the Federal Court Act. I need not address the Minister’s submission that the grounds for review in respect of the former form of application are narrower than those that are applied to the latter. In either event, the matter – be it an appeal or application - would be required to be dismissed.

31    Accordingly, I will order that the application be dismissed. I will also make an order for costs in the Minister’s favour, as agreed or assessed.

Associate:

Dated:    24 February 2020