BCF16 v Minister for Immigration and Border Protection

Federal Court of Australia|2019-01-18|Before: Charlesworth J

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

CHARLESWORTH J: 1 The appellant is a national of Sri Lanka. He is of Tamil ethnicity and also a Hindu. 2 The appellant applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) in December 2012. A delegate of the then-named Minister for Immigration and Border Protection refused to grant the visa. On review, the Administrative Appeals Tribunal affirmed the delegate's decision. The Federal Circuit Court of Australia dismissed an application for judicial review of the Tribunal's decision: BCF16 v Minister for Immigration & Anor [2017] FCCA 2953. This is an appeal from that judgment.

proceedings before the FCCA 14 In the proceedings before the primary judge, the onus was on the appellant to establish jurisdictional error on the part of the Tribunal: s 474 and s 476 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). 15 The appellant's grounds for judicial review were expressed as follows: 1. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error Particulars (a) The Tribunal did not consider properly the distinct integer of the Applicant's claim, namely that he was a single male Tamil who came from [redacted] district and then residence in [redacted] and consider that in the light of his illegal departure from Sri Lanka and also him being a failed returned asylum seeker. (b) The Tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, especially the investigation upon return to Sri Lanka, the possibility of the applicant getting someone to act as surety, to pay a fine and the state of the prison conditions in Sri Lanka, as described in reports quoted by the tribunal. 16 Rejecting ground 1(a), the primary judge said at [33]: The Tribunal noted that it had considered country information, which it put to the Applicant at the hearing, which suggested that the humanitarian situation had improved greatly since the end of the conflict in May 2009. It noted that the UNHCR in their guidance dated 2010 referred to some reports that young Tamil men from the north and east of Sri Lanka may be disproportionately affected by security measures on account of their suspected affiliations with the LTTE. It also stated that there was no longer a need for group-based protection mechanisms of a presumption of eligibility for Sri Lankans of Tamil ethnicity. In particular, the Tribunal pointed to country information which indicated that not all Tamils from northern and eastern Sri Lanka are vulnerable to harm due to imputed links with the LTTE. However, the Tribunal noted that people with 'more elaborate links to the LTTE may require protection' and further, that 'only Tamils who are identified as having connections with the LTTE or who are in other ways opposed to the current Sri Lankan Government face a risk of serious harm in Sri Lanka and not Tamils generally'. The Tribunal did not accept that the Applicant fell within any of the profiles identified by the UNHCR as being at risk of serious harm, nor that he had any involvement or association with the LTTE or was suspected of any links with the LTTE in the past. The Tribunal's consideration of these matters is set out in paragraphs 40 and 41 of the Decision Record. 17 The primary judge concluded (at [39]) that the Tribunal had: … conducted both an individual and cumulative assessment of the Applicant's claims and found them for the most part to be not credible". Those findings were open to the Tribunal on the evidence before it. There was no failure to consider any integer of the Applicant's various claims. This ground cannot succeed. 18 With respect to ground 1(b), the primary judge said at [40]: Likewise, ground 1(b) cannot succeed. The Tribunal considered the alternative criterion in s.36(2)(aa) and in particular, whether there was a real risk the Applicant would suffer significant harm by reason of investigations concerning him upon return to Sri Lanka; the possibility of the Applicant getting someone to act as surety to pay a fine; and the state of prison conditions in Sri Lanka. 19 The primary judge concluded that the Tribunal's findings in respect of the Complementary Protection Criterion were open on the evidence before it. Her Honour said: 43. Contrary to what is asserted by the Applicant, the Tribunal specifically recorded in its Decision Record that it put to the Applicant in the hearing that the Applicant has his parents, two sisters and two brothers-in-law in Sri Lanka who can stand as guarantor for him. The Applicant put no evidence to the contrary. 44. The Tribunal evaluated whether the Applicant had the capacity to pay a fine as set out in its Decision Record and in particular at paragraphs 48, 61 and 63.

GROUNDS OF APPeal 20 The appellant appeared self-represented on the appeal, as he did before the primary judge. His grounds of appeal are expressed as follows: 1. The Federal Circuit Court failed to find in respect of the AAT (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application. a. The Respondent erred in law, with the error being a jurisdictional error, by failing to consider and assess my claims of being a young single Tamil male from the Northern of Sri Lanka. b. The Respondent made an error in law in assessing the criterion in s 36(2)(aa). 21 Read in context, and having regard to the appellant's self-represented status, these grounds will be understood as asserting that the primary judge committed appealable error by failing to identify jurisdictional errors of the kind asserted in the two grounds for judicial review advanced in the proceedings below. 22 For the reasons that follow, the primary judge did not err in the manner alleged. It follows that the appeal should be dismissed.

Ground 1(a) 23 Section 414 of the Act requires the Tribunal the review a decision of the Minister or the Minister's delegate. In Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, Allsop J (as his Honour then was) said at [42] (Spender and Merkel JJ agreeing): The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. 24 See also NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] - [56], [60]. 25 As the primary judge correctly identified, the Tribunal's decision was not affected by jurisdictional error of this kind. The Tribunal expressly dealt with the appellant's claim to fear persecution by virtue of his status as a young single male from the North of Sri Lanka. The Tribunal rejected that claim principally on the basis that it did not believe the appellant's claims concerning the events that he asserted had occurred in the past and so rejected his claim that he was a person of interest to the Sri Lankan authorities by virtue of an imputed political opinion. It went on to find, on the basis of country information, that there was not a real chance that the appellant would be persecuted by virtue of his status as a single male Tamil from the North. The claim was both considered and assessed by the Tribunal.

Ground 1(b) 26 In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405, Kiefel CJ, Nettle and Gordon JJ said, in respect of the definition of "cruel or inhumane treatment of punishment" in s 5 of the Act: 26 The reference in the Act to 'intentionally inflicting' and 'intentionally causing' is to the natural and ordinary meaning of the word 'intends' and therefore to actual, subjective, intent. As Zaburoni confirms, a person intends a result when they have the result in question as their purpose. 27 An intention of a person as to a result concerns that person's actual, subjective, state of mind. For that reason, as the plurality in Zaburoni were at pains to point out, knowledge or foresight of a result is not to be equated with intent. Evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn, but foresight of a result is of evidential significance only. It is not a substitute for the test of whether a person intended the result, which requires that the person meant to produce that particular result and that that was the person's purpose in doing the act. (footnotes omitted) See also Edelman J at [114]. 27 In the proceedings before the primary judge, and on this appeal, it has not been shown that the Tribunal erred in applying these principles. Nor has it been shown that there is jurisdictional error affecting the Tribunal's finding that the appellant would be detained upon his return to Sri Lanka for only a short time pending his release on bail. As the primary judge correctly identified, the reasons of the Tribunal state that the appellant was given an opportunity to give evidence about the ability (or inability) of his family members to provide surety to secure his release on bail, and yet he did not do so. In the circumstances, it was open to the Tribunal to infer that the appellant would have family support and that his detention upon his return to Sri Lanka would not be prolonged. The appellant has not demonstrated error affecting this aspect of the Tribunal's reasoning. 28 Even if error in that aspect of the reasoning could be established, the appellant has not demonstrated how a period of prolonged detention might satisfy the definition of "significant harm", and particularly the element of intention identified by the High Court in SZTAL. It follows that ground 1(b) must fail.

PROPOSED NEW GROUND OF APPEAL 29 This appeal was listed for hearing to commence on 11 May 2018. On 9 May 2018, the appellant filed an affidavit by which he acknowledged that the Tribunal had identified discrepancies in his evidence. The appellant asserted that he suffered from mental health issues which affected his ability to recall information and to convey his claims properly to the Tribunal. He sought an adjournment of this appeal so that he could obtain a report from a psychiatrist (presumably for the purposes of tendering the report in evidence), and so that he could obtain a copy of the transcript of the proceedings before the Tribunal "to prove that I advised about my inability to recollect ... the incidents". 30 Annexed to the affidavit was a letter dated 9 May 2018. For present purposes, it may be understood as a referral from the appellant's GP to a specialist, identifying that the appellant "has been suffering from PTSD" and "memory problems" and that he required further assessment of his mental health and capacity. 31 Before this Court, the appellant made oral submissions concerning his mental health. Interpreted generously, the submissions were to the effect that he was so mentally ill at the time of the Tribunal's hearing on 8 December 2015 that he was unable to recall critical events and so could not effectively answer the Tribunal's questions. 32 The appellant's affidavit and submissions raised a potential issue similar to that which arose for consideration by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. In that case, the then-named Refugee Review Tribunal (RRT) made adverse credibility findings against a review applicant and so affirmed a decision to refuse to grant the review applicant a protection visa. On judicial review, there was medical evidence to the effect that the applicant was not mentally fit to represent himself before the RRT. The admissible opinion evidence, given by a psychologist, was to the effect that on the day of the RRT's hearing the applicant "was in no condition to handle" the hearing, was "totally unable to think clearly", "did not even know what day it was" and "had no support during the interview". The review applicant in that case was under the care of the same psychologist as at the RRT's hearing date. It was common ground that the RRT was unaware of the applicant's mental state and there was nothing before the RRT that should have alerted it to the applicant's condition. The Minister did not challenge the psychologist's evidence. 33 The Full Court referred to the Tribunal's obligation, imposed by s 425 of the Act, to invite a review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Court continued: 33 Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 at [31]. … 37 … The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: NAHF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. 38 It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a 'jurisdictional error'. … 41 Given the findings of fact made by the primary judge that the respondent was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s 425 of the Act was not a meaningful one. Through no fault of the Tribunal it was not aware of this. Even so, the Tribunal did not comply with s 425 of the Act. It did not extend a meaningful invitation to the respondent. The respondent did not receive the fair hearing required by the Act. Consequently the Tribunal made a 'jurisdictional error.' 34 See also Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575. 35 The issue sought to be raised by the appellant in this case was not raised in the proceedings before the primary judge. The appellant cannot introduce the issue on appeal without the leave of the Court. The Court has a discretion to allow new grounds to be introduced if it is expedient in the interests of justice to do so: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543 at [18]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). Leave is also required to adduce new evidence on this appeal, particularly medical evidence of a kind that might enliven the principles discussed by the Full Court in SCAR: s 27 Federal Court of Australia Act 1976 (Cth); SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [38]. 36 Having regard to the appellant's status as an unrepresented litigant, the Court received the affidavit of 9 May 2018 and the appellant's oral submissions as an application for leave to amend the notice of appeal so as to introduce the following issue on the appeal: (a) whether the Tribunal failed to afford the Appellant a fair hearing and so committed jurisdictional error, either: a. by reason of the Appellant's mental state at the time for the Tribunal's hearing (whether known to the Tribunal or not) or; b. by rejecting the Appellant's explanation of his ability to recall details of his claims. 37 The parties were provided an opportunity to file further materials in relation to the proposed new materials and the hearing of the appeal continued on the papers.

Further affidavit and submissions 38 The appellant was due to file additional materials by 22 June 2018. Nothing was filed by that date. On 9 July 2018, the appellant filed an affidavit in which he stated that he had attended at an examination with a psychiatric registrar on 7 June 2018. The appellant referred to a letter from his general practitioner confirming that he had been referred for assessment at a neurobehaviour clinic. The appellant also referred to a letter from the psychiatric registrar of the clinic to the appellant's general practitioner dated 4 July 2018. Among other things, it states that the appellant presented with a "2.5 year history of worsening memory, expressive language difficulty, headaches and poor sleep". The letter does not purport to be a report prepared for the purpose of this proceeding. It does not address the state of the appellant's mental health at the time of the Tribunal's hearing. It contains no opinion to the effect that the appellant was unable to think clearly at that time. It is clear from the letter that the psychiatrist had seen the appellant for the first time only recently, and had not treated him at the time that he attended at the Tribunal's hearing. It is also clear that the psychiatrist had not performed a formal cognitive test of the appellant, and that the assumptions of the psychiatrist were premised on the appellant's self-reported symptoms. 39 The appellant stated that it was taking him longer than he had expected to obtain a psychiatrist's report because it was necessary to have "a couple of session[s]" before the report could be prepared. He did not state when any such report had been requested, nor did he state when any such report might be provided. There is nothing before the Court to suggest that a psychiatrist had been asked to prepare a report that may be admissible in this proceeding, should leave be granted to introduce the new issue and adduce fresh evidence in support of it. Critically, the appellant did not depose to having requested a report concerning the state of his mental health as at the date of the Tribunal's hearing in December 2015. The appellant did not indicate any future date by which a report might be finalised and filed. 40 The appellant lodged written submissions, on 8 July 2018. The Registrar was ordered to accept those submissions for filing. They have now been read. The Court also has before it supplementary submissions filed on behalf of the Minister on 23 July 2018.

Consideration 41 For present purposes I will assume (without deciding) that the failure of the appellant to raise the proposed new issue before the primary judge may be explained by his status as a self-represented litigant in that proceeding. 42 For the reasons that follow, the argument now sought to be raised by the appellant does not enjoy sufficient prospects of success to justify the grant of leave to introduce it, even if there be an adequate explanation for the failure to raise the issue at an earlier time. 43 The Court made orders requiring the Minister's representatives to provide to the appellant an audio recording of the proceedings before the Tribunal. The appellant has made no reference to the audio recording so as to identify which part of the appellant's evidence was said to be affected by his mental state at the time. 44 It is to be recalled that the Tribunal's concerns about the appellant's credibility arose principally from discrepancies between the evidence given in the appellant's statutory declaration and the oral evidence he gave before the Tribunal. According to the Tribunal's reasons, when asked to explain the discrepancy concerning the amount of time the appellant had remained at place K, the appellant had responded by stating that he could not remember where he was by reason of "shelling from the sky" which had required him to stay on the move and making it difficult for him to obtain documents. It appears that at the time of the Tribunal's hearing the appellant, assisted by a migration agent, gave explanations for the discrepancies which were more concerned with external circumstances and less concerned with mental health. 45 Furthermore, as I have said, the psychiatrist who performed an initial assessment of the appellant did so some two and a half years after the Tribunal's hearing. Whilst the Minister did not object to the letter being received in evidence, in my view it is not admissible evidence of the appellant's mental state at the relevant time and so should not be received: cf Pallett v Commonwealth of Australia, Department of Human Services - Centrelink [2017] FCA 1132. Whilst the letter does contain assertions of fact concerning the appellant's self-reported symptoms over a significant period of time, it is not for this Court to draw its own conclusions as to the existence, nature and effect of a mental incapacity by reference to the appellant's submissions. This Court does not have the expertise to draw any safe inference from the statements of fact asserted in the letter as to the appellant's mental state in December 2015. Even assuming the letter were admissible in evidence (which is doubtful), it is not sufficient to prove that the appellant was not in a fit state to particulate meaningfully and effectively in the Tribunal's processes. 46 Before concluding, I should note that by his written submissions, the appellant sought to introduce a further argument on this appeal concerning the alleged inadequacy of interpretation from Tamil to English (and presumably vice versa) before the Tribunal. To that extent, the submissions went beyond the subject matter of the Court's orders of 11 May 2018 in relation to supplementary submissions and should not be entertained for that reason alone. The submissions do not, in any event, provide any explanation as to why that argument was not raised at an earlier time, either in the course of proceedings before this Court or in the proceedings before the primary judge. Nor do the submissions point to any particular aspect of the evidence that is said to have been misinterpreted so as to affect the Tribunal's decision in a material way. There is no evidence before this Court capable of demonstrating any misinterpretation in fact: Cf BGA15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1589. 47 It follows that the appeal must be dismissed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

Migration Act 1958(Cth)ss 5, 36, 65, 414, 425, 474, 476

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