BDQ16 v Minister for Immigration and Border Protection

The two decisions of the Federal Circuit Court & the new argument 6 The first decision of the Federal Circuit Court given in November 2016 addressed a series of grounds of review. In very summary form, the grounds of review proposed to be relied upon should an extension of time be granted were: an alleged jurisdictional error and a denial of procedural fairness on the part of the Tribunal in "dealing with the Applicant's bail"; an allegation that the Tribunal failed "to give genuine and realistic consideration to the information given at the hearing"; an allegation that the Tribunal "did not have any fair process of assessing [the Appellant's] credibility and denied procedural fairness"; an alleged denial of procedural fairness and a breach of s 425 of the Migration Act; and an allegation that the Tribunal "committed jurisdictional error in not complying with the requirements under paragraph 424A and/or 424AA of the [Migration Act]". 7 Each of these proposed grounds of review was considered by the Federal Circuit Court Judge and each was found to lack merit. That Court ultimately concluded that the "interests of the administration of justice are not served by extending time merely to consider, at a final hearing, formulaic grounds absent any meaningful particularity and which the applicant had drafted for him by a person who may or may not have been a lawyer": [2016] FCCA 3464 at [73]. 8 The extension of time was, accordingly, refused: [2016] FCCA 3464 at [74]. 9 It was this refusal of an extension of time which came under scrutiny in December 2016 and February 2017 when the Federal Circuit Court was requested to reinstate the application seeking an extension of time. On that occasion, the Federal Circuit Court was called upon to consider the proposed further new ground of review which the Applicant then sought to rely upon. 10 This new ground of review focussed upon paragraph [51] of the Tribunal's reasons for decision. That paragraph appears in the following context, namely: Risk profile in the reasonably foreseeable future [33] Notwithstanding the above, the Tribunal has turned its mind to whether, since his departure from Sri Lanka in February 2013, the visa applicant may have developed a risk profile giving rise to a real chance of serious or significant harm in Sri Lanka in the reasonably foreseeable future. Tamil from Kilinochchi [34] The Tribunal accepts that the visa applicant is a Tamil male from Kilinochchi. The Tribunal is mindful that, in the days of the conflict, prior to May 2009, this may have been sufficient to give a person a risk profile linked to the LTTE. However, since that time the situation has changed. … Unlawful departure [37] The Tribunal is mindful, in assessing the applicant's risks of harm in Sri Lanka in the reasonably foreseeable future, that he will return to Sri Lanka as a Tamil who departed illegally by boat without a passport, and that he is likely to be assumed by the Sri Lankan authorities to have sought asylum in Australia. ... Failed asylum seeker [44] The Tribunal is also mindful that, should the applicant return to Sri Lanka, he would do so as a failed asylum seeker and he would, most likely, be suspected by the Sri Lankan authorities to have sought asylum abroad. … [51] On balance, the Tribunal accepts that the applicant will, as a returnee to Sri Lanka, go through a process which will bring him into contact with the Sri Lankan authorities. However, the Tribunal is not satisfied, on the evidence before it, that he has any adverse profile which will be uncovered through those processes, or that being a returned Tamil failed asylum seeker, singularly or in combination with what is accepted of the balance of the applicant's personal and family profile, would give rise to differential treatment for a Convention reason, or that the process he faces on returning to Sri Lanka as a failed Tamil asylum seeker involves, amounts to, reveals or gives rise to a real chance of serious harm, either at the airport in Sri Lanka or on the applicant's return to his home, or at any point in the reasonably foreseeable future in Sri Lanka. 11 The argument sought to be advanced in respect to para [51] was simply that the Tribunal had erroneously resolved the question as to whether the Applicant had a well-founded fear of persecution by reference to whether "on balance" he would suffer harm rather than by reference to "the chance" that he may be so exposed. 12 Such an approach to the discharge of its functions, the Applicant argued, was contrary to the following observations of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, (1999) 93 FCR 220 at 238 to 240: [55] … if the [Refugee Review Tribunal] finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution. … [56] If, on the other hand, it appears that the [Refugee Review Tribunal] had no "real doubt" that its findings were correct, it is not bound to consider whether those findings might be wrong. … The Principles [60] It follows from the observations of the High Court in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] that there are circumstances in which the [Refugee Review Tribunal] must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the [Refugee Review Tribunal] is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The [Refugee Review Tribunal] must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. [61] The [Refugee Review Tribunal] performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the [Refugee Review Tribunal] cannot simply apply that standard to all fact-finding. Moreover, the [Refugee Review Tribunal] must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in [Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe decided at the same time as Abebe v Commonwealth [1999] HCA 14 at [191], (1999) 197 CLR 510 at 577 to 578]: "[i]t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself." Even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity. [62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur. [63] … The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found". Justice North agreed with Sackville J. Justice Kenny delivered separate reasons also concluding that the appeals should be allowed. 13 The argument was to be resolved upon the proper reading of the introductory words to para [51] of the Tribunal's reasons. 14 The Federal Circuit Court judge recorded the argument as sought to be advanced as follows in his reasons ([2017] FCCA 703): [14] The applicant submits that in the preceding paragraphs leading up to the Tribunal's decision at [51] (at CB 157), the Tribunal set out country information concerning the return of failed asylum seekers to Sri Lanka (see [44] at CB 155 to [50] at CB 157 under the heading of "Failed asylum seeker"). This information was essentially from two different sources. The applicant asserts that the information was in conflict in certain respects. [15] The applicant's argument is that the words "[on] balance" as they appear at the beginning of [51] (at CB 157) of the Tribunal's decision record, applied "principally" to the second sentence in that paragraph. That is, the reference to "on balance", applied to all of the matters referred to in the second sentence at [51] (at CB 157). [16] The applicant says that given that what the Tribunal "accepted" as expressed in the first sentence, was not, in light of the country information, contentious, then the phrase must have been meant to refer to all the matters referred to in the second sentence of [51] (at CB 157). That is, the remainder of the paragraph. [17] In this light therefore, the Tribunal applied a balance of probabilities "test" which was contrary to what was said in Rajalingam. The Judge thereafter set forth the principle that the reasons for decision of the Tribunal must be read "fairly" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and ultimately rejected the construction of para [51] as urged by the Applicant. In rejecting this argument, the Federal Circuit Court Judge concluded as follows: [19] The Tribunal accepted that as a returnee the applicant would go through a process that would bring him into contact with the Sri Lankan authorities as he had claimed. "However" (as the Tribunal stated), the Tribunal did not accept, given the applicant's profile, that what he faced on return would amount to, or give rise to, a real chance of serious harm. [20] It is to be remembered that the applicant made a large number of claims. The Tribunal had "significant concerns" regarding the truth of central aspects of the applicant's claims and evidence, as well as with his general credibility as a truthful witness … [21] In short, the applicant made many factual claims that the Tribunal rejected on the basis of its adverse credibility finding. The applicant also claimed that he would face harm on return to Sri Lanka from the Sri Lankan authorities because of, amongst other things, his illegal departure from that country. [22] In this context, but in light of the country information, the Tribunal at [51] (at CB 157) accepted "on balance", that he would come into contact with the Sri Lankan authorities. That is, notwithstanding that the Tribunal rejected much of the applicant's claims on credibility grounds, "on balance", and in light of the country information, it did accept this particular claim made by the applicant. [23] "However", for the reasons given throughout the Tribunal's decision, which, after all, must be read holistically, it did not accept he would face harm as a failed asylum seeker. [24] When read fairly and holistically, far from not proceeding consistently with Rajalingam, the Tribunal, in effect, gave the applicant the benefit of the doubt that he would come into contact with the Sri Lankan authorities on return to Sri Lanka. This was despite its "significant concerns" about his credibility, which included a large part of what he had otherwise said to the Tribunal. [25] The words "on balance" at [51] (at CB 157) when fairly read, represented the Tribunal's proper evaluation and weighing of its significant concerns about the applicant's credibility, as against the country information which indicated that he would come into contact with the Sri Lankan authorities on return to Sri Lanka as a failed asylum seeker. [26] The applicant's proposed ground has no merit. The entire stated reason for the [Application in a Case] is baseless. This stands as an independent basis on which to dismiss the [Application in a Case], notwithstanding the other factors relevant to the consideration of whether the [Application in a Case] should be allowed. Even if all these other factors were in the applicant's favour, the lack of merit in the "proposed" ground makes the granting of the [Application in a Case] futile. [27] Nonetheless, I did consider these other elements. The "second" issue (see [8] above) raises the question as to why the assertion of jurisdictional error which the applicant now seeks to raise, was not raised at an earlier time. That is, what has materially changed in the relevant circumstances such as to explain the "delay" in raising this assertion, or in the alternative, to argue in favour of allowing the [Application in a Case]. 15 That construction of para [51], it is respectfully concluded, is correct. Read in context, and read in a fair and practical manner, the introductory words to para [51] simply record the approach that the Tribunal was adopting - it was assuming, not without some reservation, that "on balance" the Applicant would "as a returnee to Sri Lanka, go through a process which will bring him into contact with the Sri Lankan authorities". Given that he would "on balance" come into such contact, the task of the Tribunal thereafter was to reach a state of satisfaction as to whether he would face a "real chance of serious harm". The Tribunal reached a state of satisfaction which was adverse to the Applicant. In doing so the Tribunal committed no error of the kind envisaged by Sackville J in Rajalingam. The Federal Circuit Court Judge was correct to so conclude.

CONCLUSIONS 16 It is unnecessary to resolve any argument as to whether any error on the part of the Federal Circuit Court Judge constituted either an error within jurisdiction or a "jurisdictional error" such as to attract the grant of either a writ in the nature of mandamus or certiorari. The Federal Circuit Court Judge, it is concluded, committed no error in respect to resolving the proposed "new" argument sought to be advanced in respect to para [51] of the Tribunal's reasons for decision - be it jurisdictional or otherwise. Whether or not adequate reason had been given for not advancing the argument earlier mattered not; whenever it was raised, it was without merit. There was also no error in respect to the exercise of the discretion not to reinstate the application for an extension of time. There was no error in dismissing the Application in November 2016 upon the grounds then advanced and no error in refusing to reinstate the Application in April 2017 by reference to either the grounds previously relied upon or the proposed "new" ground founded upon para [51] of the reasons of the Tribunal. 17 There is no reason why costs should not follow the event such that the unsuccessful Applicant should pay the costs of the successful Respondent Minister.

THE ORDERS OF THE COURT ARE:

1. The Originating Application filed on 28 April 2017 is dismissed.
2. The Applicant is to pay the costs of the First Respondent. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.