FEDERAL COURT OF AUSTRALIA

BFT15 v Minister for Immigration and Border Protection [2016] FCA 499

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal and rely on the grounds set out in the document filed on 2 May 2016 is refused.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs fixed in the amount of $3,179.

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

REASONS FOR JUDGMENT

1    The appellant is a citizen of Sri Lanka; he is of Tamil ethnicity and a Hindu from the North Western Province of Sri Lanka. He left Sri Lanka illegally in July 2012 and arrived in Australia on 13 August 2012 as an unauthorised maritime arrival. On 27 April 2015, the appellant’s registered migration agent summarised his claims to protection as follows (as written):

•    His ethnicity as a Tamil;

•    His actual and imputed political opinion, including of being a perceived sympathiser/supporter of the LTTE and a person perceived to hold Tamil separatist views or views supporting a renewal of hostilities against the Government of Sri Lanka;

•    His membership of the particular social groups of Tamil cricketers; and failed asylum seekers involuntarily returned to Sri Lanka.

Procedural background

2    On 3 May 2013, the appellant filed an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (now known as the Department of Immigration and Border Protection). On 10 February 2014, a delegate of the Minister refused to grant a protection visa to the appellant.

3    The appellant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for review of the delegate’s decision on 21 February 2014. The appellant attended a hearing before the Tribunal on 29 April 2015 to give evidence and present arguments; the hearing was conducted with the assistance of a Tamil interpreter. The appellant was represented by his registered migration agent who attended the hearing by telephone link. The Tribunal advised the appellant that it affirmed the delegate’s decision in its Statement of Decision and Reasons dated 28 May 2015 (“Decision Record” or “DR”).

4    The appellant applied to the Federal Circuit Court of Australia (“FCCA”) for judicial review of the Tribunal's decision on 1 July 2015. In summary, the application to the FCCA was based on the following grounds:

(1)    The Tribunal failed to disclose information it had in its possession in accordance with its obligations under s 424AA of the Migration Act 1958 (Cth), being the appellant’s entry interview record;

(2)    The Tribunal failed to consider relevant considerations being (a) that the appellant was forced to withdraw an offer to enter teacher training in 2010 due to his Tamil ethnicity and the Tribunal failed to assess and ask relevant questions as to whether it would amount to “significant economic hardship to subsist amounting to persecution”; and (b) that the appellant revealed at the hearing that he is a whistle-blower who exposed discriminative practices prevailing against Tamils in Sri Lankan Cricket (a popular sport in Sri Lanka) during a nation-wide interview on television in which he also appealed for Tamils to be given opportunities in cricket; and

(3)    The Tribunal failed to assess the appellant’s claim under the complementary protection criteria, that is, whether by exposing severe discrimination suffered by Tamils by the powerful Sinhala personalities holding positions on the Sri Lankan Cricket Board the appellant would be targeted and suffers a real risk of significant harm including degrading, inhuman and cruel treatment from these personalities.

5    A Judge of the FCCA delivered judgement on 14 December 2015 and made orders dismissing the application for judicial review with costs: BFT15 v Minister for Immigration and Border Protection [2015] 3338.

Amended notice of appeal

6    The appellant filed a notice of appeal on 6 January 2016. He relied on a single ground (as written):

1.    The Tribunal failed to consider that intentionally holding someone with the applicant’s profile as a cricketer who has won many national awards may, in a prison overcrowded and other problems for up to 2 weeks may cause extreme humiliation.

7    On 2 May 2016, the appellant filed an amended notice of appeal without leave. The appellant sought to raise three new grounds of appeal (as written):

Ground one

The Second Respondent failed to consider fully a crucial piece of evidence and thereby fell into a jurisdictional error.

Particulars

The Second Respondent took into account a document issued by the Sri Lankan Police. Court Book 83.

The Document says that Appellant will have to come to Police with several others, two of his cousins, to Police for inquiry.

That document was mistranslated. The original document said that the persons did not attend on the 4 May 2012. But the translator mistranslated as the persons did not come on the 14 May 2012.

The Second Respondent took the mistranslation into account and therefore came to the wrong conclusion.

Ground two

The Second Respondent fell into an error with the error being a jurisdictional error in that it failed to consider a crucial aspect of the Appellant’s claim.

Particulars

The Appellant claimed that, after he came to Australia, his mother and younger brother were taken by the CID in Sri Lanka, detained, beaten up and questioned as to where the Appellant was.

Subsequent to this event the Sri Lankan authorities were bribed to get the Appellant’s mother and younger brother released.

The Second respondent failed to take into account this claim of the Appellant’s case.

Ground three

The Second Respondent erred and the error is a jurisdictional error in that it failed to consider a crucial aspect of the Appellant’s claim.

Particulars

The Appellant claimed that his father was abducted and later went missing. The Sri Lankan authorities suspected that the Appellant’s father was in the LTTE. As such the Appellant claimed that he will be imputed with the LTTE opinion because of his father.

The Second respondent failed to take this claim into account and deal with it.

8    On 4 May 2016, the appellant filed an affidavit attaching what purports to be a translation of a document dated 10 May 2012 which appears in the appeal book at page 83 (“police notice”). The Minister objected to the affidavit on the basis that it was opinion evidence without proper basis (especially since the appellant does not claim to be able to read or write either English or Sinhalese), but the Minister did not object to the Court receiving the document as the appellant’s preferred translation. I note that on 4 February 2014, the appellant’s migration agent provided to the Department a different translation of the police notice prepared by the appellant’s registered migration agent; that document appears at page 138 of the appeal book.

9    At the hearing on 5 May 2016, the appellant appeared with the assistance of an interpreter. He confirmed that he sought to rely on the grounds set out in the amended notice of appeal and not on the ground set out in the notice of appeal filed on 6 January 2016.

10    The Minister opposed leave being granted to the appellant to rely on the new grounds. The Minister pointed out that these grounds were not raised in the FCCA and do not engage in any way with the judgment of the primary judge. Because the new grounds do not have reasonable prospects of success, it would not be expedient and in the interests of justice to grant leave: SZOHC v Minister for Immigration and Citizenship (2010) 118 ALD 522; [2010] FCA 1213 (“SZOHC”) at [10] per Edmonds J referring to NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] per Madgwick J (with whom Conti J agreed).

Tribunal’s summary of claims

11    The Tribunal summarised the key claims in the appellant’s statement lodged with his protection visa application at DR [10] (identifying descriptors omitted):

a.     He has not seen his father since 2000. His father, who worked in a fish drying business went to get fish and never returned. No one knows what happened to him and they feared 'something bad occurred'.

b.     Because of his Tamil ethnicity, he has been unable to pursue his dream of a cricketing career in spite of superior cricket skills; was denied entry into the [xx] Cricket Club, beaten and abused. He also attributes to his Tamil ethnicity the withdrawal of an offer to enter teacher training in [xx] in 2010 and his displacement by students with lower marks who paid bribes.

c.     Around May 2012, while he was studying in [xx], police officers came to his home in [xx] and handed his mother a letter requesting that he, his cousin [xx] and another friend attend the Criminal Investigations Department (CID) office in [xx] on a date in May 2012. He then pulled out of his course and returned to [xx].

d.     He did not attend the CID Office on the date required in the letter for fear he may be detained or face problems as he suspected that his cousin, who had been taken away for interrogation by the CID the previous month and had not been seen since, was in hiding from the CID.

e.     Around the end of May 2012, CID officers came to his home in [xx] looking for him while he was at his auntie's house. His mother told them he was not there and called him to say he should not return home that day. After this he lived at different places, including his auntie's home and his uncle's prawn farm, only returning home in the morning for half an hour.

f.     CID officers came to his home again at the beginning of June 2012. His mother told them he was not at home. While she could not understand everything the men said, she sensed that they were threatening towards her and that he was in trouble.

g.     Around the end of June 2012 some Sinhalese men, who he assumed were from the CID, came to his home while he was there eating. They took him outside the house and beat, kicked and hit him. A neighbour who spoke Sinhalese told him the men were saying that he had failed to report to them and were asking for his cousin's whereabouts. They tried to put the applicant in the van but when the neighbours gathered around, got into their van and left, threatening that they would take him to the 'fourth floor' if he did not give them information as to his cousin's whereabouts.

h.    After this incident the applicant became concerned for his safety and arranged to leave Sri Lanka on a boat around 26 July 2012.

i.    After arriving in Australia he found out from his cousin [xx], who was then in Sydney, that the CID initially interrogated him about his travels overseas and accused him of going to India in an attempt to escape from them.

j.     His mother has received two or three further visits from men asking for his whereabouts while he has been in Australia, the last time being in August 2012, and the neighbours have told her that they have seen strangers around their home.

k.     He fears that if he returns to Sri Lanka he will face serious harm, including detention, interrogation, torture or possibly death from the Sri Lankan authorities, including the CID.

l.     He believes the CID are interested in him because of his close relationship with his cousin, and his situation has become worse because he failed to attend the CID office. He believes the CID will harm him because he is a Tamil and has no one to speak on his behalf or to protect him.

m.    He also fears that, because he is a Tamil, he will continue to face severe discrimination from members of the Sinhalese community around his area, and has been denied the opportunity to pursue a career as a cricketer, despite being a talented player, recognised on the TV news and through awards.

n.    He fears harm from the Sri Lankan government and does not believe they will protect him from such harm, as agents of the Sri Lankan government, like the CID, are able to act without restrictions on their power, while Tamils, like the applicant, are particularly vulnerable and lack protection.

12    On 27 April 2015, the appellant’s registered migration agent filed pre-hearing submissions. The Tribunal summarised those submissions at DR [11] as follows (identifying descriptors omitted):

a.    On 15 September 2013 the applicant’s brother and mother were taken blindfolded by the CID; held for two days and questioned as to his whereabouts, then released after paying 200,000 Sri Lankan Rupees.

b.    His cousin [xx] returned to Sri Lanka about a year ago and was missing.

c.    The CID visited his mother’s home on 14 April 2015 looking for the applicant. His maternal uncle was at home and asked the CID why they were searching for him. When he told the CID the applicant was not there, they beat him severely.

d.    One possible reason that the CID have been pursuing him is that his father’s cousin carried weapons and fought with the Liberation Tigers of Tamil Eelam (LTTE). He had not mentioned this previously, as he thought he was being pursued because of his close relationship with his cousin. However, he now believes it is a combination of his connections with both his cousin and his father’s cousin.

e.    The applicant fears that, if forced to return to Sri Lanka, he will be arrested, questioned and seriously harmed by the security services on his return to his hometown and/or on arrival at the airport because:

•    he is a Tamil and the authorities have already targeted him and his family for their imputed links to the LTTE; and

•    he will be imputed of adverse political opinion to the current regime in Sri Lanka and suspected of being an LTTE sympathiser as a result of seeking asylum in Australia.

13    At DR [13], the Tribunal noted information provided by the appellant at the Tribunal hearing, including (identifying descriptors omitted):

a.    On 14 April 2015 the CID came to his family’s house to enquire about him. When his uncle asked them why they were looking for him, the CID beat him but did not tell him why they were looking for the applicant.

b.    He left Sri Lanka in July 2012 in fear of harm from the CID who were looking for him.

c.    His father was taken away by the CID in May 2000 when he went to buy fish in [xx] and disappeared. Asked how he knew his father had been taken by the CID, the applicant said his father had been taken for interrogation by the CID several times and tortured very badly, losing nails and having a hot iron box put on his back; but was released by paying money. This happened because his father’s cousin, who lived in [xx] was an LTTE soldier.

d.    The applicant’s mother told him that his father’s cousin was in the LTTE after his father disappeared when he was 10 years old.

e.    His family only had problems with the authorities because of his father, and after he disappeared they did not have any problems.

f.    When he last spoke to his family in [xx] a few days before, they told him the CID was still looking for him and what happened to his uncle. He did not know what the CID wanted. However, in September 2013 they abducted his mother and younger brother in a van, kept them for two days, questioned them about where the applicant was, and beat them.

g.    Asked why the CID wanted to find him, he said he thought they suspected that he had helped his cousin, whom they suspected of involvement with the LTTE. They may also have come to know about his disclosure about his father’s disappearance and his appeal for Tamils to be given opportunities in cricket during his interview on [xx] TV and [xx] in 2010.

h.    Neither he nor his family were ever involved in politics or the LTTE, with the exception of his father’s cousin (see paragraph 11.c).

i.    The applicant was never involved in anti-government activities or questioned, arrested or detained by police or security authorities and had no outstanding criminal matters.

j.    He believes the CID came looking for him because his cousin was missing and they thought the applicant was hiding him. The first time they came was in May 2012 when he happened to be at his aunt’s house. They asked his mother where he was then sent a letter saying he had to go to their office on 14 May 2012 (see further detail at 13.w). However, he was scared and did not go.

k.    The CID came again at the start of June 2012, while he was hiding in his uncle’s prawn farm; and again at the end June 2012. On this occasion, the applicant was at home having a meal, so they caught him and pulled him outside towards their van, where they beat him and his mother. However, the CID left when a crowd gathered. He was later told that the CID said that the applicant was hiding something and next time they would take him to the 4th floor and punish him. He knew from his father, who was taken to the 4th floor in 2000, that it was a place of illegal torture.

l.    After this incident, the applicant did not stay at home and his mother encouraged him to leave Sri Lanka, as she was worried the same thing would happen to him as happened to his father.

m.    Since he left Sri Lanka the CID initially came to look for him three times and they were still looking for him as late as last week, when they came asking his whereabouts, and beat his uncle when he asked why they were looking for him.

n.    In September 2013 they came saying they knew the applicant was at home. This was probably because they had been tipped off by informers that his next-door neighbour, whose name was [xx], had returned from [xx]. However, his mother told them the applicant was not there. This was why his mother and brother were detained for two days until they paid money to be released. His mother did not tell the CID the applicant was in Australia.

o.    The CID told the applicant’s mother that the reason they were looking for him was because they were looking for his cousin and thought the applicant had helped him, and also because of his TV interview, of which they had a CD, in which he said his father had disappeared and no one took any action.

p.    His cousin, who had come to Australia by boat, had returned to Sri Lanka in 2014 though he did not know where he was.

q.    The CID were looking for his cousin, who was in a ‘big problem’, though he did not know what he may have done wrong – been involved in ‘the movement’ (LTTE), drug trafficking or weapons smuggling, for example. Since he had a connection with his cousin, he fears that, if he returns to Sri Lanka, the CID might think he may have been involved in all those activities too.

r.    As they had been looking for him for so long, he fears the authorities will arrest him at the airport and take him to the courts. Even if they release him from the courts they will take him when he returns to his home.

s.    He knew his cousin was not involved with the LTTE, but was not sure if he might have been involved in other problematic activities, though he did not know what they were. The applicant had previously been questioned about his cousin’s visits to the UK and India. As his cousin was wealthy, he escaped ‘from all those things by giving money’ while the applicant was the one who ‘got caught in all those things’.

t.    He said the main reason they were looking for him was his TV interview, then shifted to say that initially they were looking for him because of his cousin and later they came to know about his TV interview, so added this issue. He also feared that the CID would make an issue of his father’s cousin being in the LTTE. As a result, what happened to his father, would happen to him.

u.    Asked if the authorities had made a connection between him and his father’s cousin, the applicant said that during the CID’s last visit to his house in […], when his uncle asked why they were looking for him, the CID told him it was because the applicant might have links with the LTTE.

v.    His mother told him this was what happened when they spoke on 15 May 2015. He asked her who in the family was involved with the LTTE, as he only knew of his father’s cousin. His mother said this could be the reason they [sic] CID were accusing him, and that if he returned to Sri Lanka, he would have a problem.

w.    The letter from the CID, given to his mother, which was incorrectly translated, was dated 10.5.2012 and said that the applicant did not report to them on 4.5.2012, so was asked to report to the CID on 13.5.2012 at 10am.

x.    His problem is that his cousin, who went back to Sri Lanka is very wealthy, and in Sri Lanka, ‘with money you can get anything’ so he is safe. However, his cousin might have transferred all his cases onto the applicant and it will be a problem for him if he returns. The applicant does not know this, but suspects it, and will only know when he goes back. His cousin will not care about the applicant, as he only cares about his own safety. Asked how he knew that his cousin was safe, the applicant said he did not know if he was safe or not, but knew he was in Sri Lanka.

y.    The ‘minus point’ for the applicant was that the CID had evidence of his TV interview, when he mentioned about his father’s disappearance and that Tamils were denied opportunities.

Ground one

14    The appellant took issue with the translation of the police notice in the appeal book, suggesting that the Tribunal erred in relying on it because it would not be possible for the police notice dated 10 May 2012 to state that the appellant failed to attend an interview on 14 May 2012, as suggested by that translation. The Minister submitted that the translation had been provided by the appellant’s own migration agent and that DR [13w] demonstrates that the Tribunal did in fact take into account the error in the translation brought to its attention by the appellant. The appellant pointed out that DR [13w] itself contains an error: instead of referring to an interview scheduled to occur on 14 May 2012 at 10 am, it refers to an interview scheduled to occur on 13 May 2012 at 10 am. The appellant submitted that the Tribunal should have taken steps to verify the contents of the police notice.

15    The appellant submitted that if the Tribunal had considered the police notice properly, it would have made a decision favourable to him.

16    I accept the Minister’s submission that this ground lacks merit:

(1)    The Tribunal was under no obligation to take steps to verify the contents of the police notice. The appellant did not suggest what steps the Tribunal should have taken. The February 2014 translation was provided by the appellant’s registered migration agent in support of his protection visa application; the appellant was responsible for the accuracy of the evidence on which he sought to rely and the Tribunal would have fallen into error if it did not take it into account, albeit that it ultimately gave the document no weight.

(2)    The Tribunal found that the appellant was not a truthful and credible witness: see DR [16]. It found it “implausible” that the CID, which is reported to be a formidable organisation in Sri Lanka, would have attended the appellant’s home on multiple occasions without result or that when the CID did find the appellant there, that they would let him go because a crowd had gathered: see DR [22]. The Tribunal placed no weight on the police notice in light of “country information” from the Department of Foreign Affairs and Trade about the widespread availability of false documents in Sri Lanka. It notes that the fact that the police notice “is not addressed to [the] applicant but internal between two CID stations and does not contain the applicant’s name also raises doubts about its veracity”: see DR [23]. These findings were open to the Tribunal on the material before it.

(3)    While it is clear that the Tribunal’s decision to place no weight on the police notice was not based on the error in the transposition of dates in the migration agent’s February 2014 translation, it is clear that the Tribunal took into account the appellant’s submission that the dates had been erroneously transposed: see DR [13w]. There is certainly a misstatement of a date in DR [13w] since neither the translation provided by the appellant’s registered migration agent in February 2014 nor the translation attached to the appellant’s affidavit filed on 4 May 2016 refer to 13 May 2012. However, there is no material difference between 13 and 14 May 2012, since each is after the date of the police notice. In any event, a factual error is not sufficient, in and of itself, to constitute jurisdictional error: see SZOHC at [16] relying on MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [28] per Black CJ, Sundberg and Bennett JJ; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ; and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ.

Ground two

17    The appellant submitted that the treatment of his mother and brother because they were related to him (having been taken into custody for two days even though they were blameless and the fact they had to bribe authorities to be released) demonstrates how the CID operates and the danger that he faces if returned to Sri Lanka. He submitted that the Tribunal could not have taken this claim into account because it did not accept that he required protection.

18    The Minister submitted that the Tribunal did take this claim into account: see DR [11a], [13f] and [13n]. The Minister says that the claim was dealt with by way of the Tribunal’s general findings at DR [24] that “[i]n view of the multiple concerns addressed above, the Tribunal is not satisfied that the applicant has been truthful about his experiences in Sri Lanka and the reasons he fears returning to that country; or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant was ever targeted or sought out by the CID …”. The Tribunal concluded that the appellant “fabricated his account of his experiences in Sri Lanka in order to achieve a migration outcome”: see DR [26].

19    The appellant’s claims concerning the CID which focus on his mother and brother are dependent on his claim that he was targeted by the CID. As the Tribunal did not accept that claim for reasons which appear to have been open to it, I accept the Minister’s submissions that this ground has no merit.

Ground three

20    In oral submissions, the appellant said that he told the Tribunal that he suspected that his father disappeared because of suspicions held by the authorities that his father had links to the LTTE and that he would suffer the same fate, but the Tribunal did not consider that claim.

21    The Minister submits that this ground lacks merit because it is clear from the Decision Record that the Tribunal had considered the appellant’s claims relating to his father: see DR  [10](a) and DR [13](c)-(e), (g), (t) and (y). The Minister further submitted that:

(1)    It is not apparent from the Decision Record that the appellant ever directly claimed that he feared harm in Sri Lanka on the basis that he would be imputed with an “LTTE opinion because of his father”; rather what the appellant told the Tribunal was in substance that his father’s disappearance foreshadowed his own fate. It could not be an error for the Tribunal to fail to deal with a claim which was not put to it.

(2)    The Tribunal expressly rejected the claim that the appellant’s “father was pursued, detained or tortured by the CID over any links to the LTTE or taken by the CID before he disappeared”: see DR [24]. The Tribunal repeated this finding at DR [30] when it said (as written, identifying descriptors omitted):

The applicant originates from [xx] in the North West Province, which was not affected by the conflict in the same way as areas in the north and east of the country. By the applicant’s own evidence, neither he nor any of his direct family members were ever involved with the LTTE (paragraph 13.h). The Tribunal has not accepted above the applicant’s late claim that his father’s cousin was an LTTE soldier; that his father was targeted, detained or tortured by the CID over any links to the LTTE; nor that the CID targeted him for suspected LTTE links.

22    I accept the Minister’s submissions.

Conclusion

23    At the conclusion of the hearing, the appellant asserted that he had not embellished his claims, as found by the Tribunal, but he had clarified them. It is apparent that the appellant’s basic concern is not that the Tribunal failed to consider his claims, but that it did not accept them. There is no indication that the Tribunal ignored any claim that it was obliged to consider in the exercise of its jurisdiction.

24    While it is the practice of the Court to afford some latitude to self-represented appellants in migration cases having regard to the gravity of protection claims, the distinction between the role of the FCCA with respect to judicial review applications and the role of this Court in reviewing the judgment and orders of the FCCA for appellable error is an important one. Having regard to my view of the merits of the new grounds raised by the appellant, I will refuse to grant him leave to amend the notice of appeal or to rely on the new grounds set out in the document filed on 2 May 2016 and I will dismiss the appeal.

COSTS

25    The Minister relied on an affidavit of Mikhail Glavac affirmed 29 April 2016 in support of an application for costs fixed in the amount of $3,179, being the mid-point that he believes, upon a taxation of costs, the Minister would be able to recover. This assessment was done prior to the appellant filing the amended notice of appeal. Pursuant to r 40.43(3)(b) and item 15.1(d) of Schedule 3 of the Federal Court Rules 2011 (Cth), the Minister is entitled to an order for costs of up to $6,439. I will order that the appellant pay the Minister’s costs in a lump sum amount of $3,179.

Associate:

Dated:    11 May 2016