DHK16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-09-06|Before: Gleeson J

The appeal be allowed.
The orders of the Federal Circuit Court of Australia, made on 22 November 2017, be set aside.
The matter be remitted to the Immigration Assessment Authority for determination according to law.
The first respondent pay the appellant's costs of the appeal and of the proceeding in the Federal Circuit Court of Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GLEESON J: 1 This is an appeal from a decision of a judge of the Federal Circuit Court of Australia ("FCCA") that dismissed an application for judicial review of a decision of the second respondent ("IAA") made on 4 October 2016: DHK16 v Minister for Immigration & Anor [2017] FCCA 3228. The IAA had affirmed a decision of a delegate of the first respondent ("Minister") refusing to grant the appellant a Temporary Protection (subclass 785) visa. 2 The appellant's notice of appeal contains the following single ground of appeal: The [FCCA judge] committed legal errors jurisdictional when dismissing proceedings. The Judge failed to consider all of the grounds raised in a proper manner. 3 The appellant did not file written submissions in support of his appeal. He represented himself at the hearing of the appeal with the assistance of a Singhalese interpreter. 4 The matter was initially listed for hearing on 21 May 2018. On that occasion the appellant requested a three month adjournment, saying that he had been unable to obtain legal representation because of a lack of funds. The appellant stated that he had recently obtained work but needed time to repay his debts and amass the funds necessary to obtain representation. The Minister submitted that a three month adjournment was too lengthy given the appellant was now employed and had provided the Court with no evidence of any genuine efforts to obtain representation. Having considered these matters, the hearing was adjourned to 15 June 2018 at 10.15 am. In my view, three weeks was a sufficient period for the appellant to obtain representation or, alternatively, to provide sworn evidence of his unsuccessful efforts to do so in support of a further adjournment application.

Background and claims 5 The following background is largely taken from the Minister's submissions. Based on my review of the appeal book, it appears to be uncontentious. 6 The appellant is a citizen of Sri Lanka who arrived in Australia as an unlawful maritime arrival on 2 October 2012. On 14 January 2013, he participated in an Irregular Maritime Arrival Entry Interview. 7 The interview record includes answers to questions about the appellant's arrangements for travel to Australia. The record states that the appellant said he had paid 10 lakhs including 3 lakhs borrowed from a friend and 7 lakhs to be paid when he arrived in Australia. In answer to questions about paying the outstanding 7 lakhs, the appellant said "I have land I am trying to sell it to pay it". 8 On 9 July 2015, he applied for a protection visa. He claimed that if retuned to Sri Lanka he would be badly beaten and killed by a moneylender, Mr SW ("SW"). The police and authorities could not protect him because they were corrupt and SW bribed officers. The appellant became indebted to SW because he required funds for irrigation, fertiliser and chemicals for a banana crop. The harvest failed. When the appellant was unable to pay SW, SW threatened him at his home and made numerous threatening phone calls. The appellant went into hiding. The appellant was taken by the delegate and the IAA implicitly to have claimed additionally that he was at risk of harm as having departed Sri Lanka illegally. 9 In a statement entitled "Reasons for claiming protection", the appellant said, concerning his financial situation: I went to several banks in neighbouring suburbs to try and get a loan. The banks all wanted me to have deposited money with them or to give them the deeds to our land as security but I couldn't do that as the deeds belonged to the family farm not me personally. My mother is still alive and the deeds were in her name. No bank would lend me any money … 10 On 23 February 2016, the appellant attended an interview with a delegate of the Minister. On 29 July 2016, the delegate refused to grant the appellant a visa. The basis of the delegate's decision to refuse the visa was that he was not satisfied that the appellant was owed protection obligation because all of the claims, at a factual level, were rejected. 11 On 1 August 2016, the appellant's matter was referred to the IAA.

IAA's decision 12 The Minister's summary of the IAA's decision also appears to be uncontentious. I have adopted that summary below, with only minor modifications. 13 On 4 October 2016, the IAA affirmed the delegate's decision. 14 Unlike the delegate, the IAA accepted a large part of the appellant's claims, including that he had borrowed money from SW to fund necessary equipment to establish a banana plantation. The IAA accepted that the appellant had been unable to repay the debts to SW and that consequently he had been threatened, that he feared for his life, and that he went into hiding. The IAA accepted that SW had the means to pay off members of the local police in relation to many unlawful actions he might take in relation to debt recovery (such as beatings), but did not accept that SW had the capacity to bribe local police to avoid the legal consequences of murdering or arranging for the murder of a defaulting debtor. 15 The IAA proceeded on the basis that the appellant faced a real chance of being beaten by or on behalf of SW and that this may constitute significant physical harassment or ill-treatment. However the IAA was not satisfied that the appellant faced harm of this nature in all parts of Sri Lanka, as required under s 5J(1)(c) of the Migration Act 1958 (Cth) ("Act"). 16 The IAA further did not accept that the appellant faced a real chance of persecution as a failed asylum seeker. 17 The IAA was not satisfied that the appellant was entitled to complementary protection under s 36(2)(aa) of the Act, finding that the s 36(2B) carve out applied as it was reasonable for him to relocate to an area of Sri Lanka where there would not be a real risk that he would suffer significant harm. The IAA found there were no unreasonable impediments to the appellant and his family relocating to a safe area in Sri Lanka. The IAA found that it was reasonable to conclude that the appellant had recourse to some financial assistance from his mother by reference to her land holdings, which could either be sold in whole or in part or used as collateral for a loan. 18 The particular finding the subject of this appeal is in the last sentence of para 23 of the IAA's decision record. It states: Whilst I accept the evidence of the [appellant] as to his own difficult financial circumstances, the [appellant's] evidence otherwise is that his mother has land holdings in his local area, being the farm which the [appellant] had managed for many years, and it is reasonable to conclude that the [appellant] has recourse to some financial assistance from his mother by reference to this asset, which whilst not a liquid asset is one which could be sold either in whole or in part or used by the [appellant's] mother, if not by the [appellant] himself, as collateral for a formal loan from a financial institution.

Proceedings before the FCCA 19 At the hearing in the FCCA, the appellant (who was then legally represented) was granted leave to amend his application to advance the following single ground of review: GROUND ONE: The Immigration Assessment Authority erred by making a finding on the reasonableness of relocation unsupported by any probative evidence and instead erroneously relied on speculation and/or assumption. Particulars The Authority speculated and/or assumed that the Applicant would raise the funds required to reasonably relocate because he had access to his mother's land holdings but that was contrary to the evidence. 20 At [7], the FCCA judge identified the relevant question for determination by his Honour as whether there was no evidence to support the IAA's finding in the last sentence of para 23 of the IAA's decision record, set out above. 21 The FCCA judge considered the evidence before the IAA at [11]-[16] of his Honour's reasons. At [13], his Honour concluded that: [T]he combination of what the [appellant] said in respect of the loan with which he paid for his travel to Australia and what he said in support of his protection visa application provide a probative basis for the inference drawn by the Tribunal at [23] that it was reasonable to conclude the applicant has recourse to some financial assistance from his mother, by reference to the land owned by his mother. 22 At [15], the FCCA judge noted that there was some tension between the statements the appellant made in support of his protection visa application and those he made at the entry interview. However, his Honour concluded that this did not mean that there was no probative material before the IAA showing that the appellant had recourse to finance. Rather, his Honour concluded, the IAA's finding was "logically based on what was said by the appellant at the entry interview in respect of his ability for the way [sic] in which he proposed to pay the outstanding amount of money that he had acquired in order to travel to Australia". 23 At [16] and [17], the FCCA judge said: The applicant himself said that he was trying to sell the land. That suggests that he had some ability to do so, either directly by himself or with the assistance of his mother. One of the suggestions made in submissions by the applicant, either expressly or by implication, is that there was no suggestion in the evidence that his mother might be willing to depart with, or encumber her land in order to assist her son. I do not accept that submission in light of what was said at the entry interview, but I find that there was evidence before the Authority to make the finding in the last sentence at [23]. 24 On this basis, the FCCA judge concluded that the appellant's only ground of review must fail and, accordingly, the application was dismissed.

Argument on appeal 25 The appellant made submissions which were addressed to his factual circumstances rather than the existence of an appellable error on the part of the FCCA judge. The appellant argued that, for factual reasons, the appellant did not have recourse to financial assistance from his mother contrary to the IAA's disputed finding. Counsel for the Minister, Mr Johnson, noted that the matters raised by the appellant were not before the IAA or the FCCA. 26 The Minister submitted that: (1) the appellant's notice of appeal fails to identify any appellable error in the reasons for judgment of the FCCA judge; (2) the FCCA judge correctly identified evidence that was capable of supporting the IAA's disputed finding; and (3) the ground of review before the FCCA judge was the very narrow "no evidence" ground.

Consideration 27 The "no evidence" ground of review was explained in Rawson Finances Pty Ltd v Federal Commission of Taxation [2013] FCAFC 26; (2013) 93 ATR 775, as the FCCA judge identified. In that decision, Jessup J explained the relevant principles in relation to the Administrative Appeals Tribunal as follows, at [62]: The Tribunal … must … proceed by reference to "rationally probative evidence" rather than on mere "suspicion or speculation": Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685. If it does so, its finding on a question of fact will not be assailable in a proceeding under s 44 of the AAT Act unless that finding was not reasonably open on the evidence. Where the finding has been made by inference, no error of law will have been made so long as there was some basis for the inference: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 326. The nature and limits of the Tribunal's function in these and allied respects were described in detail by Greenwood J (Weinberg J agreeing) in Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272 at 294-299. 28 At [83]-[84], Jagot J said: Whether a fact is supported by any evidence is a question of law; so too is the question as to what amounts to material that could support a factual finding (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355, Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]). The latter is a question of law because, before a fact may be found, "there is the preliminary question whether the evidence reasonably admits of different conclusions" (Australian Broadcasting Tribunal v Bond at 355 citing Commissioner of Taxation (Cth) v Broken Hill South Ltd [1941] HCA 33; (1941) 65 CLR 150 at 155, 157 and 160). As the reasons in Commissioner of Taxation (Cth) v Broken Hill South Ltd at 155, 157 and 160 disclose if there is some evidence which reasonably admits of different conclusions as to the existence of a fact or not, the finding of that fact or the failure to find that fact does not involve a question of law. Hence, it is only whether the evidence could have supported the factual finding which constitutes a question of law. By contrast, the question whether evidence should or should not have led to a finding of fact is not a question of law. In the present context "evidence", a term used in civil litigation, means the whole of the material before the Tribunal. The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being "no probative" evidence to support a finding or a finding not being "reasonably open" or "open" on the evidence (as in Australian Broadcasting Tribunal v Bond at 359-360) or it being necessary that a finding be based on "some probative material or logical grounds" and that a finding not be "completely arbitrary" (as in Australian Broadcasting Tribunal v Bond at 366 and 367, Kostas v HIA Insurance Services Pty Ltd at [16], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula "some probative material or logical grounds" does not convert questions of fact into questions of law. 29 I accept that the notice of appeal does not identify any particular appellable error. However, from the appellant's submissions, I understood that his complaint was that the FCCA judge had erred in rejecting the ground on which his application for review was made to the FCCA. That is, the ground of appeal was that the FCCA judge erred in finding that there was evidence to support the IAA's finding in the last sentence of para 23 of the IAA's decision record. 30 At [13] of the FCCA judge's reasons, set out above, his Honour said that the IAA's inference that the appellant has recourse to financial assistance from his mother was based on two matters, namely: (1) the appellant's claim at his entry interview that he had land which he was trying to sell to pay the outstanding costs of his travel to Australia; and (2) the fact that the family farm is held by title deeds in his mother's name (that being a reason why he could not obtain a bank loan, because he was unable to give a bank the deeds). 31 I do not accept that the second matter provided a basis for the IAA's inference. It could not be inferred from the fact that the appellant did not have recourse to the title deeds for a bank loan that he did have recourse to the title deed to obtain other financial assistance. 32 At [14], the FCCA judge said: The Authority inferred that there would be two ways upon which this financial assistance could be obtained: first was that it could be sold either in whole or in part, and secondly, it could be used by the applicant's mother, if not by the applicant himself as collateral for a formal loan from a financial institution. The fact that land in Sri Lanka could be used as collateral for a loan is an obvious inference that arises from the applicant's statements in support of his protection visa application. In fact, that was the extent of the applicant's own evidence. 33 In my view, there is an assumption underlying this reasoning that the appellant's mother was able and willing to use her land as collateral for a loan for the appellant. However, the information in the protection visa application was to the contrary of this assumption and there is no suggestion of any other information (putting aside what might be inferred from the entry interview) that supported such an assumption. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case), "the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance" of a substantial kind. In this case, contrary to the IAA and FCCA judge's assumption that I have identified, the mother apparently had been unable or unwilling to provide assistance to relieve the appellant of his debt to SW. 34 At [15], the FCCA judge said: The fact that the land could be sold and, indeed could be sold either by the mother or by the applicant, is a matter that was logically based on what was said by the applicant at the entry interview in respect of his ability for the way in which he proposed to pay the outstanding amount of money that he had acquired in order to travel to Australia. While there is some tension between the statement made in support of the protection visa application and the statement made in the entry interview, that does not mean that there was not probative material before the Authority of the fact that it was reasonable to conclude that the applicant had recourse to finances by reference to that land. 35 I accept that the appellant's statement at the entry interview provided an evidentiary basis for a finding that there was land that the appellant could have sold to pay for the cost of travel to Australia. However, the IAA's conclusion was that the appellant had recourse to financial assistance from his mother who owned land that could be deployed for that purpose. The entry interview statement does not say or imply that the appellant's efforts to sell land to pay for his travel to Australia were the product of financial assistance from the appellant's mother, or that they involved selling the mother's land. 36 Thus, I do not accept that the appellant's statement at the entry interview provided an evidentiary basis for the finding that the appellant had recourse to financial assistance from his mother. 37 I have set out [16] and [17] of the FCCA judge's reasons above. It is plain from those paragraphs that the FCCA judge concluded that the statement at the entry interview provided a basis for a conclusion that the appellant was able to secure financial support from his mother. For the reasons set out in relation to [15], in my view, this conclusion involved an unfounded factual assumption about the nature and extent of support that the appellant was able to obtain from his mother. 38 Accordingly, in my view, there was no evidence for the IAA's conclusion in the last sentence of para 23 of the IAA's decision. 39 It follows that the appeal should be allowed, and the matter remitted to the IAA for determination according to law. Costs should follow the event. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Migration Act 1958(Cth)ss 5J(1), 36(2), 36(2B)

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