APV15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant do pay the first respondent's costs of the appeal fixed at $3,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The appellant arrived in Australia by boat and sought a protection visa. His application was refused by a delegate of the Minister. An application to the Refugee Review Tribunal to review the refusal was unsuccessful. An application for judicial review by the Federal Circuit Court was refused and the appellant now brings an appeal against that decision in this Court. 2 The notice of appeal advances one ground, namely 'jurisdictional error - due to not following the law/or facts presented in the evidence'. 3 In written submissions, the Minister said that without particularisation the appellant's ground did not disclose jurisdictional error. It characterised the sole ground as one which sought to advance a claim that there had been error by the Tribunal rather than error by the Federal Circuit Court and this was impermissible. I have dealt with the proper approach where an appeal ground in a case of this kind lacks particularisation in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784. 4 At the hearing of the appeal, the appellant was given an opportunity to explain orally his concern with the decision by the Federal Circuit Court. He advanced only one matter in support of the appeal. It concerned the description of the appellant as a skipper on his fisherman identity card. He said that if he was returned to Sri Lanka then he would be suspected of people smuggling and would be jailed by the authorities in Sri Lanka. He said he would be suspected because the card described him as a skipper and he would be returned as a person who had left the country illegally. This was an issue that he had raised before the Federal Circuit Court. However, he accepted that it was not a matter that he had raised before the Tribunal. He said that he forgot to mention it and he remembered it when he came out of the Tribunal hearing. He said he did not try and raise it with the Tribunal because he only learned after the Tribunal hearing that when people are returned to Sri Lanka and they are considered to be skippers then they are imprisoned. 5 In those circumstances, the hearing proceeded on the basis that his ground of appeal was that the Federal Circuit Court erred in the manner in which it dealt with that issue. Quite properly, no issue was raised by counsel for the Minister about this aspect not being particularised in the notice of appeal as counsel was able to deal with the matter in oral submissions. 6 In the Federal Circuit Court the issue concerning the identity card was raised with the filing by the appellant of a written submission (signed by him) that stated, relevantly: In paragraph 42 the [Tribunal] had stated that I was not suspected of people smuggling. This is not correct as I had assisted in piloting the boat that came in, and I stated this in my initial interview. I submit herewith a copy of my certificate issued in Sri Lanka that point to the fact that I can pilot fishing boats. 7 Attached to the submission was a copy of a fisherman's identity card with the name of the appellant and the endorsement '[SKIPPER]'. The statement was prepared for him in English. Before me he said that he can only read and write English 'a little bit'. The statement has to be considered in that context. 8 In oral submissions, the appellant said he was not involved in people smuggling. He also said he was not involved as the skipper of the boat that brought him to Australia. Rather, he said that he had assisted in piloting the boat. He said that he was asked about these matters before the Federal Circuit Court and he had then said the same things as he was saying to this Court. 9 The reasons of the Federal Circuit Court judge referred to a claim that there was error by the Tribunal in that it failed to consider that the applicant assisted in piloting the boat upon which he came to Australia: APV15 v Minister for Immigration and Border Protection [2017] FCCA 2608 at [27]d). The judge then referred to certain passages in the reasons of the Tribunal and concluded that the Tribunal's decision 'demonstrates that it had regard to … the [appellant's] evidence that he had never committed any crimes including people smuggling': at [29]c). The appellant's complaint was rejected on the basis that the Tribunal had considered and made findings on the claims that had been presented to it and had drawn conclusions that were reasonably open, for the reasons it gave: at [30]. 10 In some respects, these reasons do not engage with the precise concern as raised by the appellant before this Court. However, a transcript of the proceedings before the Federal Circuit Court was not available to me so I am not able to determine precisely how matters in relation to the appellant being a Skipper were expressed to the Federal Circuit Court judge. In any event, even assuming that matters were put in the same way as they were put to this Court, for the following reasons they do not demonstrate error in the decision to reject the application for judicial review of the Tribunal's decision based upon those matters. 11 First, the protection claims made before the Tribunal as a reason why the appellant should have a protection visa did not include the claim now advanced. So much was accepted by the appellant. 12 Second, there was no evidence before the Tribunal that the appellant's occupation as a Skipper might be used by the authorities to impute to him (as a person being returned to Sri Lanka who had left the country illegally) a role as a people smuggler irrespective of whether that was the case in fact. 13 Third, there is nothing in the matters recorded in reasons of the Tribunal to indicate that there was an obvious inquiry that might be readily made about such matters. 14 Fourth, the appellant was assisted before the Tribunal by a registered migration agent who might be expected to have advanced any such claim had it been raised by the appellant at that time. 15 Fifth, in dealing with Country information, the Tribunal referred expressly to reports of the way ringleaders of a people-smuggling operation had been dealt with in Sri Lanka: paras 75 and 76 of the Tribunal's reasons. The Tribunal then found expressly at para 77: The applicant has not claimed to have been involved in people smuggling operations and there appears to be no evidence before the Tribunal to suggest that he was involved in such activities, so the Tribunal finds that potential risk factor is not present in this case. 16 Before this Court the appellant continues to maintain that he was not involved in people-smuggling operations. 17 Sixth, given the nature of the claims raised on the application for judicial review, the Federal Circuit Court was confined to considering whether there had jurisdictional error in the exercise of statutory decision making power by the Tribunal: s 474 of the Migration Act 1958 (Cth). It could not receive new evidence or material for the purpose of remaking the decision that was entrusted to the Tribunal: see the authorities collected by Greenwood J in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [56]-[57]. 18 Therefore, no error has been demonstrated in the decision by the Federal Circuit Court. The appeal must be dismissed with costs. The Minister seeks an order fixing the costs at $4,363. The matter was not complex. A book of documents was required, however in this matter the book would be substantially in the same terms as the book provided to the Federal Circuit Court. There were no additional interlocutory hearings. The reasons of the Federal Circuit Court were appropriately focussed upon the limited matters raised before that court and involved the application of established principles. The submissions filed in this Court for the Minister simply recited the history and submitted, in effect, that the Federal Circuit Court judge was correct. In those circumstances, I will make an order fixing costs at $3,500. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.