BXH16 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: KENNY J
• Judgment Date: 28 August 2019
• Neutral Citation: [2019] FCA 1388
• Date: 28 August 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

BXH16 v Minister for Home Affairs [2019] FCA 1388

Appeal from:	BHX16 v Minister for Immigration [2018] FCCA 1890
File number:	VID 933 of 2018
Judge:	KENNY J
Date of judgment:	28 August 2019
Catchwords:	MIGRATION – appeal from decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – whether primary judge erred in finding no jurisdictional error – whether Tribunal failed to consider claims made by appellant – whether finding of fact made by Tribunal was illogical, irrational or unreasonable – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 5AA, 36, 430
Cases cited:	Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 Minister for Immigration and Border Protection v MZYTS 2013] FCAFC 114; 230 FCR 431 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 SZRSS v Minister for Immigration and Citizenship [2014] FCA 137 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Date of hearing:	22 July 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	72
Counsel for the Appellant:	Mr A Krohn
Solicitor for the Appellant:	Vrachnas and Co
Counsel for the First Respondent:	Ms K Bradey
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDERS

		VID 933 of 2018
BETWEEN:	BXH16 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	28 August 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1. This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 13 July 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent Minister dated 4 February 2014 to refuse the appellant’s application for a Protection (Class XA) visa (protection visa). The Federal Circuit Court judgment has the citation: BKH16 v Minister for Immigration & Anor [2018] FCCA 1890.

Background

2. The appellant is a citizen of Sri Lanka. He arrived in Australia on 24 June 2012 as an “unauthorised maritime arrival”, as defined in s 5AA of the Migration Act 1958 (Cth). On 7 December 2012, he applied for a protection visa. This application was refused by the delegate on 4 February 2014.

3. On 6 February 2014, the appellant applied to the Tribunal for review of the delegate’s decision. On 5 May 2014, the appellant’s migration agent provided written submissions to the Tribunal in support of the appellant’s claims, including country information. The appellant attended a hearing before the Tribunal on 12 November 2015 to give evidence and present arguments, with the assistance of an interpreter. He was represented by his migration agent at the hearing.

4. On 9 May 2016, the Tribunal affirmed the delegate’s decision.

Tribunal’s decision

5. Before the Tribunal, the appellant claimed to fear harm from Sri Lankan authorities on return to Sri Lanka on the basis that he would be imputed with a pro-Liberation Tigers of Tamil Eelam (LTTE) political opinion, including because his parents had provided support to an LTTE cadre in the past by giving the cadre food at their house for a number of years. According to the appellant, this support was the outcome of events in 2000 and 2002. The appellant claimed that, in 2000, following the LTTE’s forcible recruitment of his older sister, his father and brother made an agreement with the LTTE for her to be released if his brother stayed, which he did. The appellant further claimed that his father had negotiated the release of his brother in 2002, on the condition that the family would feed an LTTE cadre when he visited their house. The appellant claimed that his father gave in to this demand after the LTTE threatened to kill family members.

6. The appellant also claimed that the Criminal Investigation Department (CID) had arrested and imprisoned his father on suspicion of supporting the LTTE in September 2008; and that the appellant was also detained for two days in 2008, during which time he was interrogated, beaten and forced to confess that he was an LTTE member. The appellant claimed that his father was eventually released from prison in July 2010 with no charge, on the condition that their family remain in a particular area of Sri Lanka. The appellant claimed that thereafter he, his father and brother continued to experience ongoing problems: CID officers continued to ask whether they were working for the LTTE and beat them on a number of occasions. The last incident was in January 2012, following which the appellant decided to leave Sri Lanka. The appellant claimed that even after leaving Sri Lanka, CID officers had visited his parent’s home asking about his whereabouts, and beat his father and brother on a number of occasions.

7. The Tribunal accepted that the appellant’s father was detained for around one year and 10 months on suspicion of supporting the LTTE and was beaten during his time in prison (at [19]). It also accepted that the appellant was detained for two days in 2008, when he was questioned and beaten by CID officers (at [20]). Significantly, however, the Tribunal noted that: (a) the appellant’s release from detention after two days “does not indicate that they considered him a suspect”; and (b) the fact his father was released without charge or a sentence, only being required to remain in a particular area of Sri Lanka, “indicates … that the [appellant’s] father was not considered an LTTE suspect in general or in relation to the specific allegations” against...