BAX16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-02-28|Before: Mr P, Griffiths J

The appeal be dismissed.
The appellant pay the first respondent's costs in the sum of $6,439. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA), which is reported as BAX16 v Minister for Immigration and Border Protection [2017] FCCA 167. Orders were made by the FCCA on 27 September 2017 dismissing the appellant's judicial review application. 2 For the following reasons, the appeal must be dismissed with costs.

Summary of background facts 3 The appellant is a citizen of Sri Lanka. He is Sinhalese and is a Catholic. 4 The appellant left Sri Lanka illegally in June 2012, leaving his wife and two children behind in Sri Lanka. When living in Sri Lanka he was a fisherman. He applied for a protection visa on 15 October 2013, which application was refused by the Minister's delegate on 14 November 2014. The then Refugee Review Tribunal (now the Administrative Appeals Tribunal (AAT)) heard his application for review on 21 March 2016 and decided on 6 April 2016 to affirm the delegate's decision. 5 The appellant sought a judicial review of the AAT's decision in the FCCA. The appellant represented himself before the AAT, the FCCA and on the appeal.

The AAT's reasons for decision summarised 6 The AAT addressed whether the appellant met the refugee or complementary criteria for a protection visa. He initially advanced three grounds for his claims, namely: his membership of a political party (Janatha Vimukthi Peramuna (JVP)), and the related imputed political opinion; his illegal departure from Sri Lanka and his status as a failed asylum seeker; and the ramifications of him having allegedly captained the boat on which he arrived in Australia, thereby facilitating a people smuggling operation. 7 The AAT noted that the nature of the appellant's claims changed and that, before the AAT, he effectively abandoned his claim based on membership of the JVP and potentially imputed political opinions. In his evidence to the AAT the appellant said he was no longer interested in politics and that his wife had told him that he no longer had any problems in Sri Lanka arising from his previous political activities. The AAT viewed this as a shift in his evidence because he had previously claimed to have been an active member of the JVP, but he now said he was merely a low level supporter. Based on this change, the AAT found that the appellant had not been an active member or supporter of the JVP and that he had not been targeted by opposition party members. Having found that he appellant was a low level supporter, as the appellant himself conceded, the AAT concluded that there was no real chance that the appellant would be persecuted by members and supporters of political parties who were opposed to the JVP if he were returned to Sri Lanka. 8 The AAT then addressed the appellant's claim that he would be killed by local "thugs" if he were returned. He told the AAT about an incident in June 2010 when he said local thugs had demanded that he hand over his catch of fish for free and that although he managed to escape, they attacked one of his crew members with a sword. The AAT found that this account was different from the account given to the delegate of the same incident. In particular, the differences were identified as relating to the investigation of the incident by local authorities and their reaction. 9 The AAT accepted that the appellant had been confronted by a thug in June 2010, that the matter was reported to the police, and that the appellant may have been involved in altercations from which he had to escape and for which he had to seek the assistance of navy officers and/or the police. It found at [48], however, that this was not for a Convention reason. The AAT also distinguished this incident from another incident in relation to which the appellant claimed that he had been attacked when driving home by two men who had stopped his vehicle and tried to assault him. This other incident had been raised before the delegate but not before the AAT. The AAT found that the June 2010 incident was random, that the thugs targeted the appellant because they were seeking free fish, and that the thugs not only targeted the appellant but also other fishermen. The AAT also found that Sri Lankan authorities had provided the appellant with assistance and that the attack which occurred in 2010 was generalised criminal conduct. 10 As to the appellant's claims arising from his alleged role as captain of the boat which carried him and others from Sri Lanka to Australia, the AAT rejected his claim that he had been in charge of the boat. Rather, it said that it accepted that, as a fisherman, he may have assisted the crew and taken turns to steer the boat. The AAT attached significance to the fact that the appellant had to be prompted at the AAT hearing to provide evidence about his claims to have captained the boat. This finding partly informed the AAT's more general conclusion that it did not find the appellant to be a credible witness. At [14] of its reasons for decision, the AAT described his evidence as "evasive, vague and inconsistent" and that it had to prompt him during the hearing in order to illicit information about his claims. 11 The AAT rejected the appellant's claims that he was specifically approached by his neighbour to captain the boat because the neighbour knew that the appellant's life was in danger in Sri Lanka. The AAT also explained why it was not satisfied that the appellant's illegal departure, or his status as a failed asylum seeker, would cause him to be imputed with any political opinion. 12 The AAT gave similar reasons for rejecting the appellant's claim for complementary protection. 13 It is evident that, following a complaint by the appellant's migration agent that the appellant did not understand what had occurred at the AAT hearing, the AAT offered the appellant, through his agent, the opportunity of a second hearing if the appellant so requested. This was not taken up by the appellant and, thereafter, no further material was given to the AAT by or on behalf of the appellant.

The FCCA proceeding 14 In his judicial review application below, the appellant, who represented himself with the assistance of an interpreter, raised two grounds of judicial review. They involved claims of procedural unfairness by the AAT and that the AAT applied the wrong legal test. Each ground was rejected by the primary judge after noting that the appellant had not filed any written submissions nor advanced any oral submissions in respect of either of the two grounds of judicial review. 15 As to the complaint that there was procedural unfairness at the AAT hearing because the appellant did not understand what had occurred, the primary judge found at [27] of his Honour's reasons for judgment that the AAT had "responded appropriately to that complaint and no further action was taken by the [appellant]". As the primary judge noted at [28], procedural fairness required that the appellant be given a meaningful opportunity to be heard. There was nothing in the materials before the primary judge which suggested that the appellant believed that, at the time of the AAT hearing, he was not able to participate meaningfully in the process. The primary judge also noted that nothing was placed before the FCCA to support the contention that the appellant had not fully understood the AAT proceedings. 16 The primary judge explained why he rejected the appellant's second ground of judicial review. Those reasons are set out at [30]-[34]. For the reasons there given, the primary judge said he was satisfied that the AAT had given proper consideration to all of the appellant's claims, had correctly applied the law, and made no error in its decision. 17 As to the appellant's specific claim in the FCCA that the AAT had erred in not accepting his claim that he had captained the boat, the primary judge found that the AAT's finding was not unreasonable, illogical or irrational and that the FCCA was effectively being invited to engage in an impermissible merits review. 18 The primary judge made similar observations in respect of the appellant's claim that the AAT erred in not accepting his claim that he was at risk of harm because of death threats made against him. The primary judge noted the appellant's abandonment of claims based on his imputed political opinions and also that the AAT had made a specific finding that it did not accept that the appellant was being monitored by unknown people, or targeted by the thugs involved in the 2010 incident.

The appeal 19 In his notice of appeal dated 11 October 2017, the appellant raised the following two grounds of appeal (without alteration): 1. The proceeding in the order which the application relates was pronounced involves a question of law. 2. There is a jurisdictional error occurs in the order. 20 The appellant failed to provide an outline of written submissions in support of his appeal. He was assisted by an interpreter at the hearing of the appeal. His oral submissions may be summarised as follows. The appellant reiterated his claim that he would be attacked and killed if he returned to Sri Lanka. He said that he had been told this by both the owner of the fishing boat and his brother. He also reiterated his claim that he had in fact captained the boat which brought him and others to Australia. The Court explained the limited nature and scope of the appeal, and the need for the appellant to identify an appealable error in the reasons for judgment of the primary judge. The appellant was invited to address the two grounds of appeal in his notice of appeal. He was unable to do so, and could not identify any error of law or fact in the primary judge's reasons.

Analysis 21 The deficiencies in the appellant's notice of appeal are evident on its face. The document shows no appreciation of the nature and scope of the appeal. This is perhaps understandable, given the fact that the appellant represented himself. 22 It is necessary, however, for an appellant to identify and establish appealable error on the part of the primary judge. It is unnecessary for this purpose for the error to be a jurisdictional error. The appellant must persuade the Court that the primary judge made a relevant error of law or fact, or failed to exercise any discretion in accordance with established legal principles and criteria. In applying these principles, it is also important to bear in mind that the appeal relates to the exercise of a judicial review jurisdiction by the FCCA, which is a relatively confined jurisdiction and does not generally require the primary judge to make his or her own findings of fact, as opposed to reviewing the reasons of the AAT with a view to identify any jurisdictional error committed by that body as raised by the judicial review applicant. 23 The appellant has failed to meet these requirements. 24 The primary judge's reasons for rejecting the claim of procedural unfairness are comprehensive and entirely orthodox. Even if it be assumed that there was some procedural unfairness created by the AAT hearing on 21 March 2016, any such deficiency was cured by the offer which was then made by the AAT to conduct a second hearing. The appellant did not take advantage of this opportunity. It is well established that the relevant requirement is that a party to the AAT be given a reasonable opportunity to present his or her case (see for example, Kioa v West [1985] HCA 81; 159 CLR 550 at 615 per Brennan J). It is a matter for the party to determine whether or not he or she takes advantage of that opportunity. In this case, the appellant has proffered no explanation as to why he did not take advantage of the AAT's invitation, which was extended to him via his migration agent, to participate in a further hearing. There is a reference in the Appeal Book to the appellant having appeared in person by video link to Adelaide and that his migration agent did not attend the AAT hearing because she was in Melbourne. There is also an AAT file note which records the AAT having received a telephone call from the office of the appellant's agent the day after the hearing and stating that the appellant "doesn't understand anything that happened yesterday". The file note records the agent's colleague who made the call as being unsure of why the appellant claimed that he did not understand anything. 25 There is another file note in the Appeal Book which records a further telephone conversation with the appellant's migration agent on 22 March 2016, in which the agent was advised that if she intended to make post-hearing submissions, they should be in writing and accompanied by an affidavit from the appellant. The note further records the agent being told that, alternatively, "… if the [appellant] wants the opportunity to participate in a second hearing, this request needs to be made within seven days". 26 There is nothing in the material before the Court on the appeal to indicate that the primary judge was not entitled to proceed on the basis that the appellant did not avail himself of this invitation or opportunity prior to the AAT publishing its reasons for decision on 6 April 2016. 27 To the extent that the appellant also wishes to appeal the primary judge's rejection of his second ground of judicial review, I accept the Minister's submission that the primary judge was correct to reject this ground for reasons referred to in [16] above. The appellant has not identified any specific appealable error in relation to the primary judge's reasons. 28 I should add that, having regard to the fact that the appellant is a litigant in person, I have personally reviewed the primary judge's reasons for decision in order to discern whether there is any evident appealable error. I can discern none. 29 In his written outline of submissions filed shortly before the hearing of the appeal, the Minister sought an order that the appellant pay his costs fixed in the sum of $6,439. The Minister relied upon Item 15.1(d) to Sch 3 of the Federal Court Rules 2011 (Cth) (2011 FCRs). The Court's power to make an order for costs in a lump sum is to be found in r 40.02 of the 2011 FCRs. The Court has a broad discretion whether or not to make a lump-sum costs order, as is reflected in authorities such as Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority (No 2) [2014] FCA 444; 315 ALR 131 per Mortimer J and Saizeriya Co Ltd v Peregrine Management Group Pty Ltd [2005] FCA 1174 per Kenny J. There is also a relevant Practice Note - GPN-COSTS, which contains a section on lump-sum costs orders. 30 There is a specific provision in r 40.43 of the 2011 FCRs which addresses a short form bill in a migration appeal, such as the present proceedings. The effect of this provision is that, if such a proceeding is finalised after a final hearing, the successful party may claim as costs and disbursements of the appeal the amount set out in item 15.1(d) of Sch 3 to 2011 FCRs. That is what the first respondent seeks here. I am satisfied that such an order should be made, noting that a similar approach was recently taken by White J in DSR16 v Minister for Immigration and Border Protection [2018] FCA 154.

Conclusion 31 For these reasons, the appeal must be dismissed. The appellant must pay the first respondent's costs in the fixed sum of $6,439. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

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