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[2019] FCA 2057
Federal Court of Australia
2019-11-18
Lee J
Original judgment source is linked above.
LEE J: 1 This appeal from the decision of the primary judge of 9 April 2019 was filed, in accordance with the applicable time limits, on 29 April 2019. The notice of appeal is in large respects unsatisfactory. The appellant cannot be criticised for this because the reasons of the primary judge were not published until 24 May 2019 (that is, almost a month after the notice of appeal was filed). When the matter first came on before me I inquired as to whether the reasons were delivered ex tempore (in circumstances where this is not evident from the face of the judgment, which merely records orders being made on 9 April 2019). I am informed by Ms Burnett, who appears on behalf of the first respondent (Minister) that the reasons were delivered following a hearing on that day. 2 In circumstances where the appellant has only a very limited understanding of English, it is to be expected that he was not in a position to appreciate the detail of the reasons delivered ex tempore. In those circumstances the appropriate course, in my view, would have been for the primary judge to have extended the period to allow any appeal to this Court to a date after which revised reasons had been published and could be reviewed. 3 In any event, this course was not adopted with the consequence, as one of the grounds of appeal notes: … it is more than 20 days the Honourable Judge (sic) in the Federal Circuit Court has not published the reasons for the judgement which significantly affected my right to appeal to provide reasons why I believe that the Federal Circuit Court in dismissing my appeal is wrong. 4 In these circumstances I was anxious to ensure that the appellant, having now had the opportunity of reviewing the reasons for judgment and obtaining advice (apparently through the assistance of the local Tamil community), was able to amend his notice of appeal. Notwithstanding that the reasons of judgment were now provided some time ago, the grounds of appeal remained unchanged, despite this opportunity being afforded to the appellant. 5 The application made before the primary judge and its background were summarised, with respect accurately, at [2]-[23] of the reasons of the primary judge. Before the primary judge it was alleged that the decision of the second respondent (Authority) dated 22 November 2018 (Decision) was infected with jurisdictional error on the following bases: (a) Identifying wrong issue (Ground 1); (b) Asking wrong questions (Ground 2); (c) Ignoring relevant material (Ground 3); and (d) Incorrect interpretation and/or application to the facts applicable law (Ground 4). 6 The primary judge found Ground 1 was not made out because the assertion of a "wrong issue" was unparticularised and was incapable of making out any relevant error: at [29]. The primary judge held that on the face of the decision, the Authority correctly identified "the rule of law" (whatever that is supposed to mean). More relevantly, the primary judge concluded that on the face of the decision, "the Authority had a real and meaningful engagement with the applicant's claims and submissions and complied with its statutory obligations in the conduct of the review". 7 In relation to Ground 2, it was held that a generalised assertion of a wrong question is not, on its face, capable of making out any jurisdictional error. The primary judge held the decision correctly identified the relevant law and made findings that were open for the reasons given by the Authority. 8 Ground 3 was not made out because the generalised assertion of ignoring relevant material was not, on its face, capable of making out a jurisdictional error. His Honour held that there had been no identification of any relevant consideration that the Authority failed to take into account. 9 In relation to Ground 4, it was again said that this was a bare assertion of an incorrect interpretation or application of the facts to the applicable law and hence was not capable of identifying any jurisdictional error. 10 It is fair to say that there was a somewhat formulaic approach taken to the relevant four grounds which at first glance caused me a degree of disquiet. With this in mind, and despite the grounds of appeal (other than Ground 4 which I will deal with separately), being inadequately formulated or expressed at a very high level of generality, I have reviewed the Decision with some care to ascertain whether or not there was some arguable jurisdictional error evident. 11 It seems to me the Decision does show some engagement with the claims for protection made and the findings and reasoning outlined at [8]-[23] of the judgment below were, on the identified materials, clearly open. 12 In this Court, the appellant has raised the following four grounds: 1. The Court below erred in finding that the Immigration Assessment Authority (IAA) had failed to properly consider the Applicant's claims under s36(2)(a) and s36(2)(aa) of the Migration Act 1958 ("the Act"). (Appeal Ground 1) 2. I respectfully noted that it is more than 20 days the Honourable Judge in the Federal Circuit Court has not published the reasons for the judgement which significantly affected my right to appeal to provide reasons why I believe that the Federal Circuit Court in dismissing my appeal is wrong. (Appeal Ground 2) 3. The Applicant seeks leave to rely on the following ground. It is submitted that the ground as presented has merit and no prejudice to the Respondent is evident. In these circumstances it is submitted leave can be granted consistent with the principles developed in SZSFS v Minister for Immigration and Border Protection [2015] FCA 534. (Appeal Ground 3) 4. The decision of the IAA is without any evidence and it is illogical and made on mere assumption." (Appeal Ground 4) 13 For completeness, I will deal with each of them notwithstanding the general comment that I have made at [11] above.
Appeal Ground 1 14 As will already be evident, I do not believe that there is any merit in Appeal Ground 1 which, in any event, given its unparticularised nature, is difficult to engage with meaningfully: see, eg WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24]. More relevantly, as I have already noted, a fair reading of the Decision demonstrates the Authority considered the appellant's claims and the extensive country information relevant to those claims (including new country information submitted by the appellant). It is also evident that the findings made were reasonably and logically available on the material before the Authority. 15 Indeed, in large part, the Authority accepted the factual claims made by the appellant noting that the evidence advanced was broadly consistent and his factual claims were plausible having regard to the country information relevant to those claims. Part of that evidence was that the appellant stated in his CHEV interview that he had not been involved in politics and had not participated in any pro-Tamil demonstrations or belonged to any Tamil organisation in Australia: see Decision at [14]. 16 After identifying in unexceptionable terms the matters to be considered in assessing whether a person has a well-founded fear of persecution, the Authority referred in detail to country information relevant to each of the claims to fear harm by reference to the individual circumstances of the appellant. There is no substance in Ground 1.
Appeal Grounds 2 and 3 17 Appeal Grounds 2 and 3 are not really appeal grounds at all and are best seen as a generalised complaint about the failure to deliver reasons within the time allowed for appeal (a complaint which is justified) and essentially amount to an introduction to Ground 4.
Appeal Ground 4 18 Particularised Ground 4 was not raised before the primary judge, and the Minister opposes leave being granted to raise it on the basis that it lacks sufficient merit. In all the circumstances, I consider that I ought to grant leave to raise Ground 4. It is in the following terms: 4. The Decision of the IAA is without any evidence and it is illogical and made on mere assumption. Particulars The IAA noted in its decision at para 47 that the applicant would be able to secure bail by either pleading guilty or on personal surety. It is noted that Section 45 (1) (O) as amended in 2006 of Immigrants and Emigrants Act of Sri Lanka provides that if a person leaves the country unlawfully would face imprisonment for a term not exceeding five years and to a fine not exceeding two hundred thousand rupees. Since 2006, the section is amended and deleted previous word of 'either' and therefore, if a person is charged and convicted, he would be imprisoned and fined. The IAA wrongly interpreted the section or failed to have a look carefully the relevant legal provision. In addition, there is no provision in the above Immigrant and Emigrant Act which allows the accused person to pay the fine in instalment. The IAA assumed that the applicant would secure bail by either pleading guilty or on personal surety and it is respectfully submitted that the IAA did not provide any legal authority or evidence to support its conclusion. It should be noted that granting bail is governed by the Bail Act 1997 of Sri Lanka. The IAA failed to look into the relevant legal provisions to assess whether the applicant would be able to secure bail. It is respectfully submitted that the IAA decision has no legal base or supported by any evidence and it is based on mere assumptions. It is respectfully submitted that above principles were observed in a recent Federal Circuit Court decision in BVG15 v Minister for Immigration & Anor [2019] FCCA 290 (15 February 2019). 19 It is convenient to note at the outset that to the extent there is some reliance on BVG15 v Minister for Immigration [2019] FCCA 290, it is somewhat unclear as to how that decision is said to be of real assistance in the present case. As with any illogicality argument, that decision, of course, turns on the specific circumstances and findings in that case which are obviously not replicated in the same form in the Decision here. The Minister submits as follows at [27]-[30]: At [47] of the Authority's Decision, the Authority accepted that: (a) on return to Sri Lanka, the Appellant may be considered to have departed illegally, even though he left when he was six years old; (b) there was a possibility the Appellant would be charged under the [Immigrants and Emigrants Act 1949 (Sri Lanka)]; (c) the Appellant may be questioned and detained in the airport for processing by the authorities for up to 24 hours with the possibility of being held at an airport holding cell for up to two days which may be in poor condition. However, the Authority was not satisfied that: (a) there was a real chance that the Appellant would be subject to a custodial sentence for departing Sri Lanka illegally; (b) whilst the Appellant had no family members in Sri Lanka, there was a real chance he would not be able to "secure bail by either pleading guilty or on personal surety (if such matters arise)". Significantly, the Authority noted that country information indicated that the [Immigrants and Emigrants Act 1949 (Sri Lanka)] is not discriminatory on its face and is not applied or enforced in a discriminatory manner. The Authority was not satisfied that any treatment the Appellant may experience as a result of his illegal departure would constitute serious harm. Once it is acknowledged that the [Immigrants and Emigrants Act 1949 (Sri Lanka)] is a law of general application which is applied in a non-discriminatory way, then it must follow that the finding is neither "illogical" nor made on "mere assumption". In contrast to BVG15, no assumption was made by the Authority for its findings outlined above - those were based on the Country Information it considered and the Appellant's particular circumstances. In BVG15 the Court found that there was no legal or evidentiary basis for the tribunal's finding that a paternal uncle of the applicant is "a family member capable of standing as guarantor for the purposes of the relevant Sri Lankan law". 20 The submissions should be accepted so far as they go. Whatever the particular terms of the relevant Sri Lankan legislation, the position before the Authority was summarised at [45]-[46] as follows: DFAT reported that most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the [Immigrants and Emigrants Act 1949 (Sri Lanka)]. Children over 14 can be charged; no bail or fines are imposed for children under 14. DFAT understands that the police at Colombo's Bandaranaike International Airport make most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate's Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the CID's Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time - for example, because of a weekend or public holiday - those charged may be detained for up to two days in an airport holding cell. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General's Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. 21 The critical point is that it was open for the Authority to reach the conclusion that there was insufficient material to allow it to be satisfied that "there is a real chance that the applicant would not be able to secure bail by either pleading guilty or on personal surety". This conclusion was drawn based upon the country information and a lack of contrary material provided by the appellant. It was not made on the basis of mere assumption as asserted by the appellant. Further, on the basis of the country information summarised in the Decision, it was open to the Authority to find that the questioning, temporary detention, imposition of a fine or any other costs associated with possible bail or court appearances (if they arise) and any other associated treatment as a result of illegal departure would not "constitute serious harm or persecution to the applicant". 22 Although I would be disposed to grant leave to appeal, there is no substance in Appeal Ground 4. Accordingly, in these circumstances, the notice of appeal must be dismissed with costs. 23 In order to safeguard the position of the appellant, I will make an order that the appeal be dismissed with costs, but these orders will not be entered and take effect until the publication of my revised reasons for judgment. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.
GSQ18
Minister for Home Affairs