BSB15 v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent of and incidental to the appeal in the fixed sum of $6,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The appellant is a Sri Lankan national who arrived in Australia by boat on 8 July 2012. His application for a protection visa was refused by a delegate of the Minister and that refusal was affirmed on review by the Administrative Appeals Tribunal (the Tribunal). 2 The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court (FCC), pursuant to s 476 of the Migration Act 1958 (Cth). That application was dismissed on the ground that the appellant had not established any jurisdictional error: BSB15 v Minister for Immigration & Anor [2016] FCCA 930. 3 The appellant then appealed to this Court. He was unrepresented at the hearing of the appeal, as he had been in the FCC. 4 At the conclusion of the hearing of the appeal, I made an order that the appeal be dismissed and said that I would provide reasons later. The following are my reasons for dismissing the appeal. 5 There are two grounds of appeal: (1) The applicant narrated to the Tribunal that he was seriously injured in an attack by a SLFP supporter by the name of Chaminda … . The Tribunal could have easily ascertained the truth of this statement by asking the Applicant to show his scar in the head. Failure to verify the truth which was available then, is clearly an error in law made by the Tribunal. His Honour failed to note this [and] erred in law in affirming the decision of the Tribunal. (2) It is clear that the applicant presented himself without legal representation and his appeal was based purely on the face of the Court Book. The applicant had an interpreter to be able to answer any questions His Honour deem[ed] fit. Absent the submissions, justice must be seen to be done as well as be done. His Honour failed to seek any details of his appeal against the Tribunal's findings, particularly the matter of his assault and the persecution on the grounds of his perceived or otherwise association with another politician in preference to the politician who used violence to threaten the life of the applicant. Instead his Honour relied totally on the submissions of the Respondent to make the decision. The applicant has been severely compromised in the hearing because of the lack of legal representation, a right he was entitled to but not available at that time. 6 The first ground is a complaint that the FCC Judge should have found that the Tribunal member erred in law by not himself seeking out evidence which may have amounted to some corroboration of a claim about which the member had doubts. 7 The background to that complaint is as follows. As part of his claim that he had a well-founded fear of persecution by reason of his actual or imputed political opinions, the appellant told the Tribunal of an incident which occurred in Sri Lanka on 14 February 2009. He said that he had been assaulted in Negombo by a man named Chaminda who had struck his head with a sword, splitting his skull open. He had been able to escape and later received treatment at the Negombo and Colombo hospitals. The wound on his head had required 38 sutures but he had been left with a long scar. That is the scar which the appellant now claims that the Tribunal member should have inspected for himself. 8 The general principle is that it is for applicants in proceedings in the Tribunal to advance the evidence or arguments upon which they rely in support of the contention that they have a well-founded fear of persecution for a Convention reason: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ). However, in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) at [25], the High Court held that there may be some circumstances in which a failure by the Tribunal to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could supply a sufficient link to the outcome to constitute a failure to review and, accordingly, jurisdictional error. The plurality considered it unnecessary in the circumstances of SZIAI to decide that question conclusively. Nor, having regard to the circumstances of this case, does the question require consideration, in order to determine the present appeal. 9 In the hearing in the Tribunal the appellant was assisted by his migration agent (who is also a solicitor). It seems that neither asked the Tribunal member to inspect the scar. I also note that the migration agent did not refer to the scar in the lengthy written submission which he made on behalf of the appellant to the Tribunal. The appellant had mentioned the scar in his initial entry interview and in two of the three statutory declarations he provided in support of his application to the Minister's delegate, and which were also before the Tribunal. However, he had not previously contended that the appearance of the scar was significant to the determination of his claim. Accordingly, the Tribunal member was not put on notice that the appearance of the scar may be significant to the assessment of the appellant's claims. 10 In his reasons, the Tribunal member reviewed in some detail the appellant's account of the incident involving Chaminda. He considered that a number of the aspects of the account were implausible. However, the Tribunal member noted that the appellant had provided a photo of his injured skull and a medical report from the Colombo Hospital which confirmed that he had suffered skin lacerations. He also noted that the medical report made reference to an assault. The member then went on to conclude: [70] The Tribunal has had regard to this evidence and accepts [that] the applicant may have been the victim of an assault. The Tribunal does not accept that enquiries about his father's death were a threat to Chaminda's family and were the cause of the assaults in 2009. The Tribunal found the applicant's account of the assault by Chaminda difficult to accept and lacking in credibility. Having regard to the findings above, the Tribunal does not accept that the applicant … came to the attention of Chaminda and/or his SLFP associates because of any political activities or his enquiry into his father's death. 11 That is to say, the Tribunal member accepted that there had been an assault in which the appellant had suffered lacerations to his head for which he had received treatment in hospital, but did not accept the appellant's account of the circumstances of that assault or of the involvement of Chaminda. Inspection by the Tribunal member of the appellant's scar would have confirmed that the appellant had at some time in the past suffered an injury to his head and, to that extent, would have been corroborative of the appellant's account. However, the Tribunal member accepted that the appellant had been the victim of an assault. It was the circumstances of the assault and, in particular, the involvement of Chaminda about which the member was not satisfied. It is not obvious that inspection of the scar would have added to the evidence concerning the way in which the assault occurred, and it is plain that it could not have added to the evidence that it was Chaminda (and not someone else) who was responsible. 12 Thus, any omission by the Tribunal member to inspect the appellant's scar is a matter of no practical consequence. 13 It was evident on the hearing of the appeal that the appellant wished the Court to evaluate afresh the evidence concerning the claimed assault by Chaminda. As I explained to the appellant, that is not the function of this Court on appeal. 14 I conclude that the Tribunal member did not commit an error of law by not asking to inspect the scar. As indicated, it was for the appellant to place the evidence on which he relied before the Tribunal and it was for him to ask the Tribunal to make any observations of his own person on which he relied. The Tribunal member was not bound to enquire further by asking to inspect the scar. He did not commit jurisdictional error in the circumstances of this case by omitting to do so. 15 Accordingly, Ground One in the notice of appeal fails on its own merits. It is, therefore, unnecessary to address the circumstance that this was not a matter on which the appellant had raised before the FCC. 16 Ground Two raises complaints about the manner in which the FCC Judge conducted the hearing before him. It refers to the appellant being unrepresented, to the Judge not enquiring about the Tribunal's findings (and, in particular to the Judge not enquiring about the circumstances of the assault or the appellant's association with a politician) and to the Judges' reliance on the submissions made on behalf of the Minister. 17 The appellant did not provide a transcript of the proceedings in the FCC by way of support for these contentions. 18 With the exception of the circumstance that the appellant was unrepresented in the proceedings before the FCC, the complaints in this ground are not borne out by the available evidence. The FCC Judge did summarise the claims which the appellant had made in the Tribunal (and hence had regard to them), at [3]-[4], and did identify the basis upon which the Tribunal had affirmed the delegate's decision, at [5]-[9]. He noted that the Tribunal member had not regarded the appellant as a credible witness and in turn had not been prepared to accept his claims as true. 19 The FCC Judge summarised, at [10], the appellant's oral submissions before him, which the Judge described as "brief". The Judge considered, correctly in my opinion, that by those submissions the appellant sought, in effect, a merits review of the Tribunal's decision. The Judge also said that even if the Tribunal had made factual errors of the kind to which the appellant referred, those errors would not be sufficient to establish jurisdictional error. In this respect, the FCC Judge referred to, and applied, the decision of the Full Court in NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [10]. 20 The appellant had the assistance of an interpreter in the FCC hearing. Nevertheless, it is understandable that the appellant, being without legal representation, may have had difficulty in making oral submissions in the FCC. However, the appellant had also had the opportunity to provide a written outline of submissions in advance of the hearing in the FCC and did not do so. In addition, the appellant had not exercised the leave granted to him by a Registrar in the FCC on 25 September 2015 to file and serve further material, including the transcript of the proceedings in the Tribunal. There is accordingly no obvious basis upon which it could be concluded that the appellant was denied a fair hearing in the FCC by not having had the opportunity to present evidence and submissions. It is well-established that it is the applicant on proceedings for judicial review who has the onus of establishing jurisdictional error by the Tribunal: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67]; SZNPI v Minister for Immigration and Citizenship [2010] FCA 106 at [10] and the authorities listed therein. The same applies with respect to complaints based on the way in which a primary judge conducted a judicial review hearing. 21 The appellant has not established any of the diverse complaints contained in Ground Two. Accordingly, this Ground also fails. That means that the appeal should be dismissed. 22 These are my reasons for the orders made on 22 August 2016. 23 Although I did not rely on it at the time I announced my decision, I have, since the hearing of the appeal, reviewed the transcript of the hearing in the FCC. In view of the complaints made about the FCC Judge's conduct of the hearing, I consider it appropriate to say that it is not apparent that there was any shortcoming in the manner in which the Judge conducted the hearing. On the contrary, the appellant was given the opportunity to make submissions as he chose. He did so with the assistance of an interpreter. It is very apparent that, despite the explanation given by the FCC Judge, the appellant's submissions were not directed to establishing jurisdictional error, but instead to a merits review of the Tribunal's decision, something which was beyond the jurisdiction of the FCC Court. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.