BJU17 v Minister for Immigration and Border Protection

Federal Court of Australia|2021-02-17|Before: Mr J, Vasta J, Greenwood J

The appellant is given leave to adduce fresh evidence in support of the appeal in the form of affidavit evidence exhibiting a transcript of an interview between a departmental officer of the Department of Immigration and Border Protection (as the Department was then known) and the appellant in relation to the appellant's application for a Safe Haven Enterprise (Subclass 790) visa.
Order 2 of the orders made by the Federal Circuit Court of Australia on 12 March 2018 is set aside.
In place of Order 2, the following orders are made: (a) The constitutional writs are to issue quashing the decision of the Immigration Assessment Authority (the "IAA") of 23 March 2017; (b) The matter of the conduct of the review of the decision referred to the IAA is remitted for further consideration by the IAA.
In further considering the matter referred to the IAA, the IAA is to have regard to the matters discussed in the reasons published today in support of the orders made today.
The first respondent pay the appellant's costs of and incidental to the appeal.
Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

101 The appellant contends that the only reasonable interpretation of the statements of the appellant that it is difficult to work under one person for a long time; that the money or salary the appellant would get would not be enough to look after his family; that he would have more expenses in looking after his family; and that "so I have to do it by myself", is that on return to Sri Lanka the appellant would, and would need to, set up his own business, which in the context of the IAA's discussion otherwise, recognises that the appellant is a motor mechanic who has worked in (and for a short time owned and operated) a garage business. 102 The appellant contends that these statements made in the SHEV interview make it unequivocally clear that he claimed the need to and would, should he be returned to Sri Lanka, set up his own garage to sustain himself and his family. The appellant contends that the IAA's conclusion or observation that the appellant does not claim that he will be setting up his own garage or other business if he returns to Sri Lanka is simply "not justified on the evidence". 103 As to the contextual discussion (following the above exchange quoted at [100] of these reasons) concerning extortion of "Tamil business people" which the appellant contends was the position he would be in should he be returned to Sri Lanka, the following exchange occurred: Transcript Participant Content 1133 PB I just have one more question. Just going back to you telling me about people coming and asking you for money when you owned your business, okay. 1135 PB The targeting of people for money, so extortion essentially, is that done to all people? So are there Singhalese people in that area that have the same problem? 1137 INT Mainly these groups are Tamil members like yeah so they won't know, or won't do, normally they won't go to Singhalese places. Like yeah so they will target only the Tamil business people. 1138 PB So what's the reason why they wouldn't target Singhalese people do you think? 1140 INT So there is a reason for the government to keep these groups because otherwise they could have destroyed them, these groups as well like the way that they did to LTTE. So because they are still in those areas actively functioning for a reason and also because they are with the government, like they won't go to Singhalese.

104 The appellant explained in the transcript aspects of the harassment he had experienced as follows: Transcript Participant Content 579 PB When you say we can't live peacefully, what do you mean? 581 INT Say like yeah I'm a mechanic, yeah I work in the garage so like yeah from the para, like para … 583 INT Yeah TELO, EPDP like yeah I have got the harassment with them, like every month I have to pay 5,000 to one group … 585 INT Okay every month, every month TELO group will visit, visit my garage so I have to pay 5,000 rupees to them. And the other small group … 587 INT Okay so like yeah they are members of that group like yeah sometimes like if they need personal … 589 INT Okay they don't work, they don't work so when they need, as and when they need money like they come and threaten us like to me to the garage to demand for money. 590 PB So you mentioned one group. I mean you mentioned the EPDP to start with but then you also mentioned a different group.

105 After the above exchanges, the appellant and Mr Blackford exchanged a discussion about PLOTE, LTTE, TELO and EPDP. 106 The following further exchange occurred in relation to the scale of the threat and the consequences for the individual should the demands not be met. These references appear to be the source of a number of the observations of the IAA in its reasons as quoted earlier. 107 The further exchanges are these: Transcript Participant Content 606 PB Which, out of those groups, are they all doing the same thing or is there one particular group? 608 INT Okay all three yeah, all three and on top of that Sri Lankan army. So they all bring their vehicles so I have to repair everything and they won't pay any money like yeah. I can't even ask them like yeah they will say like don't you know who we are. 609 PB So aside from people coming once a month to ask for money, are there different groups coming at different times? 611 INT Say yeah like yeah the 5,000 they come and the others, they come like when they need personally, when they need money they just come and harass me. Like and if I say I don't have any money they will give me some time, like yeah within two days like you have to give that money. We will come to collect. 613 INT So I don't get any money like for our own expenses like yeah, so the income, there is no income for me. 614 PB Do they do this to other people? 616 INT Okay so everybody, when they demand for this type of threat, like yeah everybody has to oblige otherwise there is a big risk. 607 PB And what's the risk? 619 INT Okay so they will even kill, they won't hesitate to kill like yeah because they will do that for one person to show, show that to the others in the area like so that next time everybody will give. 620 PB So do you know of instances where that's happened to other people? 622 INT Okay say like yeah that happens all the time like yeah the people, their bodies are everywhere like in the paddy field or on the road like yeah those are the reasons why they kill. 623 PB And so why do you think that there doing, why do you think that they're specifically targeting people that live in that area? 625 INT Okay say for the members of the groups, they don't have any income for them personally. So because of that they have to collect it from other people, like from the business people, individuals like families. 626 PB Does your father have the same problem? 628 INT Okay my Dad he does like labourers job so but for me like my situation is different because I own this garage like yeah I am a business person. 629 PB So does your Dad not get targeted or ask[ed] for money? 631 INT Okay so like yeah they are no that exposed to the community yeah like because they just do their job and go home. Like yeah, and they, Dad does, he goes into homes and do their gardening work and that sort of work so. 632 PB So what other types of people have this problem with these groups? So tell me like which people do they target. 634 INT Okay if they know that people who are like getting money, like more money like businesses, and the rich people.

108 Throughout the transcript there are sections where the transcript simply notes that conversations took place between the appellant and the interpreter (in the appellant's national language) before the transcript records the answer given by the interpreter in English. The various notes throughout the transcript to those discussions between the interpreter and the appellant have not been inserted in the above sequence in the transcript. 109 As can be seen from the transcript and the contentions of the appellant described particularly at [92], [93] and the matters at [99] to [107] of these reasons, the transcript of the audio-recording of the SHEV interview provides the basis for the appellant's contention that the challenged observation at [45] of the IAA's reasons (that the appellant "does not claim that he will be setting up his own garage or other business if he returns to Sri Lanka"), is not a correct understanding of the position adopted by the appellant. The appellant describes that observation as a "conclusion" or "finding" of the IAA that lacks an evident and intelligible justification (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the plurality at [76]) or that the conclusion or finding suffers from illogicality or irrationality, in the sense described at [44] of these reasons. 110 Reading the reasons of the IAA as a whole taken together with the proffered transcript, I would not regard the challenged observation at [45] of the IAA's reasons as a "finding" or "conclusion". There is no deliberation of matters leading to a weighing of facts ultimately leading to a conclusion or finding. 111 The real point is that the IAA has not embarked upon a deliberative analysis of facts leading to a relevant finding as, so far as the IAA was concerned, the appellant was not making a claim of a matter of particular fact. The IAA was recording that no claim, as described, was being made. That matter was both incorrect and material to the conclusion that the chance of the appellant facing serious harm from extortionists in the future in Sri Lanka was "remote". 112 Accordingly, I admit the affidavit evidence of the transcript of the SHEV interview. 113 I do so having regard to these considerations. 114 I accept that the appellant has had possession of a copy of the audio-recording of the SHEV interview since 6 December 2016. 115 I also accept that, having regard to the hearing date of 12 March 2018, the appellant could reasonably have caused a transcript of the interview to be produced and put before the primary judge. 116 However, the appellant is a Tamil from the Northern Province of Sri Lanka who asserts that he is owed protection obligations by Australia on the grounds already identified. He is a person whose family has suffered the atrocities described and accepted by the IAA. He has suffered harassment as accepted. His claims are generally accepted. He was unrepresented at the time when the audio-recording was sent to him on 6 December 2016 and but for Mr Boccabella providing pro bono services to the appellant shortly before the 12 March 2018 hearing, I am willing to infer that the appellant would not have had the assistance of legal advice and representation at the Federal Circuit Court hearing (unless some other counsel or solicitor had been willing to provide it at the time). 117 The question of whether the transcript is to be admitted engages the exercise of a discretion. The exercise of the discretion takes into account the factors just mentioned but also weighs in the balance the important question of how the interests of justice are best served in the circumstances of the case. It seems to me that the affidavit evidence attaching a copy of the transcript ought to be admitted as the interests of justice are served by enabling the appellant to identify the factual foundation for the contention that the IAA misunderstood the claim he was making and the materiality of that matter to his protection claims. 118 I also recognise that the transcript has been produced by what is described by Ms Woodrow in her affidavit as "a professional transcription company". I accept that proof of the process for producing the transcript and proof of the standing of the "professional transcription company" has not been properly adduced in strict form. Nevertheless, where the question in issue is whether the administrative decision-maker has failed to discharge a statutory duty of reviewing the decision referred to the IAA by reference to claims made by the person asserting a protection obligation owed to him by Australia, any formal lack of strict proof as to the process of transcription and the authority and standing of the company ought not to outweigh, at the balance point, the best interests of justice. 119 It should be noted that there is no suggestion by the Minister that the transcript is not correct. However, that may well be because in order to advance such a submission, the transcript would need to be in evidence and contested by other evidence of an alternative version. Here, the contest is as to the admission of the transcript (as it is put forward) at all. 120 As to the substance of the grounds of appeal, a number of the important factual matters recited in the reasons of the IAA can be seen in the transcript of the audio-recording. As the IAA records in its reasons, the decision-maker has referred to the audio-recording in addressing the various factual matters earlier mentioned in detail. The question raised by the grounds of appeal is not really one of whether a "finding" or "conclusion" suffers from legal unreasonableness as having no evident and intelligible justification or whether a "finding" or "conclusion" is to be characterised as having been reached irrationally or by reason of illogicality in the sense earlier described. Rather, the question is whether the IAA simply failed to recognise that should the appellant return to Sri Lanka he would, and would need to, set up his own garage (undertaking) to support his family financially and so use the skills he has as a mechanic as found. The IAA recognised the relationship between the appellant operating such a garage business and the conduct of paramilitary groups (as earlier described) in seeking to extort payments from him and the risk of the consequences of the appellant failing to make the payments. However, the IAA rendered that risk as "remote" because it understood the position to be that the appellant did not claim that he would be setting up his own garage business (with the result that he would be of no interest to the extortionists). 121 However, he did make that claim and it can be seen directly at [100] and [101] of these reasons and contextually at [103] to [107] of these reasons. 122 It is well accepted that the IAA is only required to address claims that clearly arise on the material. Here, it can be seen that the IAA recognised that the topic (or subject matter) of whether the appellant would or would not be setting up his own garage business on return to Sri Lanka was relevant and material as that matter was expressly addressed. The IAA regarded it as important to expressly note what it regarded as the position on that topic. 123 However, the IAA did not appreciate that the appellant was making a claim that he would, and would need to, set up his own garage business on return to Sri Lanka. As already mentioned, that matter was material to the appellant's protection claims. 124 The appellant's claim in this regard was not obfuscated. It was raised expressly in the interview and the claim was placed in context as the transcript reveals. 125 These matters were not before the primary judge. The primary judge did not fall into error on this ground. The ground as now developed on appeal in the context of the transcript is meritorious. The orders of the primary judge are to be set aside and the matter of the review of the delegate's decision is to be remitted to the IAA for consideration of the appellant's claims of protection obligations owed to him by Australia in the context of the claim that upon his return to the Northern Province of Sri Lanka he would, and would need to, set up his own garage business to support his family. 126 That claim must be considered by the IAA and made the subject of findings. 127 As to the remaining ground emphasised by the appellant and described in summary form at [94] to [97] of these reasons, I accept that if the IAA has accepted, as it seems to me it has, that a failure to meet the demands of the extortionists gives rise to a real risk of life threatening consequences described by the IAA at [36] of its reasons (see [64] of these reasons and the discussion at [74] to [79] of these reasons and particularly at [79]), it is no answer to the question of whether Australia owes protection obligations to the appellant (in the context of the findings favourable to the appellant concerning the extortion conduct and threats of such conduct by paramilitary groups and the SLA) to conclude that the chance of the appellant facing serious harm from these groups is remote because by meeting the demands, paying the money and acting in accordance with the requirements of the extortionists, only financial harm or hardship arises (and not to a degree that the appellant or his family would be reduced to not being able to "sustain themselves economically"). The point is that the very demands are the expression of the persecution, or real chance of significant harm from which protection obligations (on the findings otherwise), arise. 128 The IAA accepts that extortion claims form part of the "criminal activity" of paramilitary groups and elements within the SLA in the Northern Province of Sri Lanka. The IAA must not only consider the appellant's claim as discussed at [120] to [124] of these reasons but also whether the appellant faces a real chance of serious harm should he refuse to comply with the demands of the extortionists rather than whether the harm is of only the character described by the IAA should he comply with those demands. 129 In deciding as it did on this issue, the IAA fell into jurisdictional error. 130 To the extent that the primary judge thought otherwise, the primary judge, in my respectful opinion, fell into error. 131 In effect, there are two central matters relevant to this appeal contained within [45] of the IAA's reasons. The first is the IAA's understanding that the appellant does not claim that he will be setting up his own garage business and second, that, in any event, he does not face a real chance of serious harm because compliance with the demands only brings about financial harm (and not at the level of a threat to being able to economically sustain his family), whereas the fear of harm arises out of the consequences for the appellant in not complying with the demands of the extortionists. It seems to me that there is a degree of inter-relationship between these two contentions. 132 That being so, it is important to recognise that the first limb of these contentions was not agitated before the primary judge with the result that the costs order of the primary judge ought not to be disturbed. 133 However, the Minister will be ordered to pay the appellant's costs of and incidental to the appeal. I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.

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