FEDERAL COURT OF AUSTRALIA

BBE15 v Minister for Immigration and Border Protection [2017] FCA 111

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the former Refugee Review Tribunal affirming a decision of a delegate of the former Minister for Immigration and Citizenship not to grant the appellant a protection (class XA) visa.

2    The appellant is a male citizen of Sri Lanka of Tamil ethnicity and Christian faith. He arrived in Australia in July 2012 without a visa.

3    The appellant applied for a protection (class XA) visa in December 2012. In his application, the appellant claimed that from 2005 to 2007 his mother operated a small grocery business, from which the Liberation Tigers of Tamil Eelam (LTTE) would sometimes purchase groceries without paying.

4    The appellant claimed his uncle was shot in 2006 and he believed it was because his uncle was suspected of helping the LTTE.

5    The appellant further claimed that in 2006 he was taken by the Criminal Investigation Department (CID) and suspected of being involved in the LTTE. He said he was detained by the CID for seven days, during which period he was asked to identify people from pictures and questioned about assisting the LTTE. The appellant said the officers beat him up when he told them he did not know any of the people in the pictures. The appellant said he was released after a Father from his local church negotiated with the officers for his release.

6    The appellant claimed that in 2007 the police and the CID were rounding up Tamil males suspected of supporting the LTTE, and took him to the police station after finding him alone at his house. He said he was interrogated at the police office for four days and was physically assaulted. He said he was questioned about why there was a large quantity of groceries at his house and who he was helping by storing the groceries. The appellant said he was released after his mother spoke with the officers.

7    The appellant also claimed he was rounded up by the army on his way to work in 2008. He said the authorities took him to the police station because he did not have an identity document.

8    The appellant added that his cousin was kidnapped in 2008, but was uncertain for what reason and by whom.

9    The appellant claimed to have been detained and questioned about his involvement with the LTTE on two other occasions, in 2010. On the first occasion, the appellant said, he was working with three other people clearing a forest area when the navy came and took them to Pusa. They were separated and he was detained for 14 days, beaten and asked to confess to working for the LTTE. He said he was released with the help of a local politician.

10    The appellant said that three months later, he was told to present himself to the Karuna office, but he did not go to the Karuna office. The appellant said a month later, he and his friend were picked up in a white van and taken to a camp, and he was interrogated by the Karuna group about his alleged involvement with the LTTE. He claimed he was detained for a total period of 8 days, during which he was beaten and denied food.

11    The appellant also claimed that in 2011, three of his cousins were killed during a shooting between the army and the Tamil people at Mulathivu.

12    The appellant said in or around May 2012, he was working for Vasanth Building Construction and made a delivery to a location where a dead body was found the next day. He claimed a local shopkeeper advised him there was an investigation into the death and that his (the appellant’s) name was included in a list of people identified as being in the area when the death occurred.

13    The appellant also claimed that Tamil males from his neighbouring village were abducted in June 2012.

14    The appellant said his parents made arrangements for him to flee to India because they feared for his safety, and he left Sri Lanka in 2012.

15    The appellant claimed to fear harm from the Sri Lankan authorities if he returned to Sri Lanka on the basis of his Tamil ethnicity; his imputed political opinion in support of the LTTE because of his family, who may have been involved in the LTTE, and his profile as a young Tamil male; his presence at a location where a murder had occurred; and his status as a failed asylum seeker.

16    The appellant’s application for a protection visa was refused by a delegate of the Minister on 4 September 2013. On 13 May 2015, the Tribunal affirmed the delegate’s decision under review.

17    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 2 September 2016, the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and so dismissed the appellant’s application. See BBE15 v Minister for Immigration & Anor [2016] FCCA 2281.

18    The appellant now appeals from the decision of the Federal Circuit Court by a notice of appeal filed 23 September 2016.

DELEGATE’S DECISION

19    The delegate noted significant discrepancies between the information the appellant provided in his entry interview and statutory declaration, and in his protection visa interview. The delegate said that during the protection visa interview, the appellant claimed he feared harm because of his support and activities campaigning for the Tamil United Liberation Front (TULF) during the 2010 election.

20    The delegate further noted that the appellant suspected he was detained on the two occasions in 2010 because of his political involvement.

21    The delegate stated the appellant’s failure to indicate any political involvement or fear of harm relating to political involvement in his entry interview and statutory declaration was significant. The delegate found the appellant was not politically active in Sri Lanka and was not detained or harmed for this reason, or personally singled out as a target, in 2010.

22    The delegate also found there was no indication that the appellant had any outstanding issues with the Sri Lankan authorities, or was of personal interest to the authorities or paramilitary groups, or held any kind of elevated profile locally or nationally for any reason.

23    The delegate was satisfied the appellant feared harm for the essential and significant reasons of race, imputed political opinion in support of the LTTE, membership of the particular social group of “young Tamil males” and membership of the particular social group of “returnees from a Western country”, as required by s 91R(1)(a) of the Migration Act 1958 (Cth). However, the delegate considered the matter of the appellant fearing harm as a result of his name being included on a list of people who had been in an area where a dead body was found was unrelated to any of the Convention grounds, and so did not consider the matter further.

24    The delegate was satisfied that, having regard to recent country information and advice from the UNHCR, no aspect of the appellant’s circumstances, including his race, in combination with any other issue, would lead the Sri Lankan authorities to believe or suspect he was affiliated with the LTTE. Consequently, the delegate found there was no real chance that the appellant would be persecuted because of an imputed political opinion in support of the LTTE.

25    The delegate was satisfied that young Tamil males may face harassment, but was not satisfied that this amounted to persecution under s 91R(1)(b) and (c) of the Act. Accordingly, the delegate did not accept the appellant faced a real chance of persecution from the Sri Lankan authorities or paramilitary groups by reason of his membership of the particular social group of “young Tamil males” in the reasonably foreseeable future.

26    The delegate also considered the country information on the treatment of returnees to Sri Lanka and concluded that the appellant did not hold any profile which put him at risk of arbitrary detention or torture, or bring him to the adverse attention of the Sri Lankan authorities, if he was returned. The delegate did not accept the appellant faced a real chance of persecution for being a returnee from a Western country in the reasonably foreseeable future.

27    For the above reasons, the delegate found the appellant’s fear of persecution was not well-founded.

28    The delegate was not satisfied that Australia had protection obligations to the appellant and found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act.

29    The delegate was also not satisfied there were substantial grounds for believing there was a real risk the appellant would suffer significant harm as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka. Consequently, the delegate found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(aa) of the Act.

TRIBUNAL’S DECISION

30    The appellant, together with his representative and an interpreter, appeared before the Tribunal on 19 February 2015 and 12 May 2015 to give evidence and present arguments.

31    The Tribunal found the appellant had added to key claims to his account as he went through the application process, and his account was inconsistent and lacking in credibility.

32    The Tribunal accepted that the appellant’s cousins may have been killed in 2009, his uncle may have been killed in 2006, and his cousin may have disappeared in 2008, as this period was during the civil war in Sri Lanka, however it did not accept the appellant would be imputed with any political profile or LTTE profile because of their deaths or disappearance, or because of his association with them.

33    With respect to the appellant’s political claims, the Tribunal noted the appellant said he campaigned for the Tamil National Alliance (TNA) in the 2010 elections and supported the TNA or Illankai Tamil Arasu Katchi (ITAK), and not the TULF, as claimed by the delegate. The Tribunal further noted there was no mention of the appellant’s political involvement in his entry interview or statement in support of his protection visa application. Rather, the Tribunal said, the first time the appellant raised this claim was at his June 2013 interview.

34    The Tribunal also said that during the hearing, the appellant claimed he was arrested and detained in 2010 because of his involvement with the LTTE and his political involvement with the TNA. However, the Tribunal said that, earlier in the same hearing and in his written statement, the appellant had maintained that his arrest arose as a result of his work clearing land in the vicinity of an army camp, and that he was questioned only about his involvement in the LTTE. Having considered the evidence, the Tribunal did not accept the appellant campaigned for the TNA or was detained because he supported the TNA, and further found the appellant had fabricated his claim about being involved with the TNA.

35    The Tribunal also found the appellant fabricated his claims about being detained by the Karuna and the Sri Lankan authorities in 2010. The Tribunal said the appellant’s descriptions of the details of the detentions were vague and inconsistent, and his account of the reasons for his detention varied. The Tribunal added that the appellant did not mention the two key and lengthy detentions in 2010 in his entry interview. Although the Tribunal accepted that the appellant was detained on roundups during the war, the Tribunal did not accept he was detained, questioned or assaulted in 2010 or thereafter.

36    The Tribunal also did not accept that the appellant would be imputed with or perceived as being involved with the LTTE or being anti-government now or in the future, even taking into account the disappearance and deaths of his family members, and his being rounded up, questioned and detained during the war.

37    At the second hearing in May 2015, the appellant discussed his post-hearing submissions on the disappearance of a friend who was abducted with him in June 2010. The Tribunal said the appellant claimed his family attended a protest at the village after his friend’s disappearance and further claimed to fear harm from the Karuna if his friend’s wife told the police they were abducted together. The Tribunal noted the appellant did not mention his friend’s disappearance in his statement. The Tribunal considered the evidence, noted the late introduction of the claim and the lack of credibility in the appellant’s account, and did not accept the appellant’s friend was abducted in 2010 or disappeared, or that the appellant was detained in 2010 with his friend, or that his friend’s wife made a complaint, or that she or his family attended a protest.

38    The Tribunal ultimately did not accept the appellant would face harm from the authorities, the paramilitary or the Karuna in the foreseeable future.

39    Having regard to the submissions and the country information referred to in the course of the hearing, the Tribunal found that Tamils do not face a real chance of suffering serious harm from the Sri Lankan authorities solely on the basis of their ethnicity and, further, that the appellant did not face a real chance of harm for reasons of his ethnicity or membership of a particular social group as a Tamil male or a Tamil male who has been rounded up and questioned in the past.

40    The Tribunal was also not satisfied the appellant had a real chance of being persecuted if he returned to Sri Lanka as a failed asylum seeker from Australia. The Tribunal accepted the country information on returnees, who departed Sri Lanka illegally, being questioned, reported, charged and fined, but was not satisfied that this amounted to serious harm. The Tribunal also noted the reports of torture and assault of individuals held in prison in Sri Lanka, but did not accept the appellant would face torture or mistreatment if he were held on remand, as he did not have a profile of being opposed to the Sri Lankan government or being involved with the LTTE, as discussed above.

41    Consequently, the Tribunal did not accept the appellant would be harshly treated as a Tamil, failed asylum seeker or illegal departee, and that the chance of the appellant facing torture or mistreatment if he was returned to Sri Lanka was remote.

42    For the above reasons, the Tribunal was not satisfied the appellant faced a real chance of serious harm due to his ethnicity, political opinion or membership of any particular social group, and did not have a well-founded fear of persecution for any Convention reason, now or in the reasonably foreseeable future if he returned to Sri Lanka.

43    The Tribunal was further not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there would be a real risk that he would face significant harm.

44    The Tribunal concluded that it was not satisfied the appellant was a person in respect of whom Australia had protection obligations under the Refugee Convention and, therefore, the appellant did not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.

45    The Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa and the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

46    In his amended application for review of the Tribunal’s decision filed 19 May 2016, the appellant raised the following grounds:

Ground 1

The tribunal committed a jurisdictional error in failing to identify or assess an integer of the applicant’s claim which was apparent from the material before the Tribunal.

Particulars as per submissions filed herewith.

Ground 2

The tribunal made a finding in respect of which there was no evidence. Alternatively, the finding incorrectly stated the evidence and thus constituted error. This error infected the Tribunal’s decision in that the Tribunal applied an incorrect test.

Particulars as per submissions filed herewith.

47    The primary judge had regard to both the amended application and the particulars of the grounds as provided in written submissions filed 19 May 2016.

48    In relation to the first ground, the primary judge said the appellant argued the Tribunal fell into jurisdictional error by failing to specifically address an integer of the appellant’s claim, being that the appellant and/or his mother operated a grocery business from which the LTTE purchased or took groceries and that the authorities suspected him and/or his mother of storing groceries on behalf of the LTTE.

49    The primary judge noted it was submitted on behalf of the appellant that a person (such as the appellant) who had been detained, questioned and/or suspected of storing or providing groceries to the LTTE would be a person at risk of harm from the authorities if he returned to Sri Lanka.

50    The primary judge, referring to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [68] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 24; [2003] HCA 26, said that an applicant needs to make a “substantial, clearly articulated argument relying upon established facts.” His Honour did not consider that the appellant had made a substantial clearly articulated claim that he had a profile of a person suspected of links with the LTTE as a result of the supply and storage of groceries for the LTTE or on the basis of having family links with any such persons.

51    His Honour further stated that even if it could be said that the claims were appropriately made, such claims had been subsumed in the Tribunal’s findings of a greater level of generality in paras [50], [58], [68] and [69] of its decision. These findings included that the Tribunal did not accept the appellant was suspected of or perceived to be a member of the LTTE now or in the future and did not accept that the appellant was wanted by, or faced harm from, the authorities.

52    For these reasons, his Honour dismissed the first ground.

53    In relation to ground number 2, the primary judge noted this ground was contained in the appellant’s outline of submissions filed 19 May 2016, which stated as follows:

Ground 2

26 The Tribunal made a finding in respect of which there was no evidence. Alternatively, the finding incorrectly stated the evidence and thus constituted error. This error infected the Tribunal’s decision in that the Tribunal applied an incorrect test.

27 At [CB307, paragraph 74] the Tribunal accepted that there is evidence that some Tamil returnees have reportedly suffered torture and abuse from the authorities. The Tribunal asserts that these reports involve returnees who have some ‘reasonably substantial’ form of connection with the LTTE. The Tribunal cited a UNHCR article Refworld (footnote 9) for this assertion (the article)

28 Contrary to the assertion of the Tribunal, the article did not state that only returnees with some ‘reasonably substantial’ form of connection with the LTTE were tortured and abused. The article cites, apparently with approval, a report to the following effect:

‘Instead, our evidence demonstrates the people of Tamil ethnicity with even minimal or merely suspected links to the LTTE have been detained and tortured and these practices continue in the post conflict period’.

29. This error by the Tribunal led to it applying the test that a ‘reasonably substantial form of connection with the LTTE or who are suspected of such linkages...’. The correct test based on the article is ‘even minimal or even suspected links’.’

54    The primary judge noted the article in question, entitled “Sri Lanka COI Query Response”, was prepared by the Asylum Research Consultancy and states at page 11:

Instead, our evidence demonstrates that people of Tamil ethnicity with even minimal or merely suspected links to the LTTE have been detained and tortured and these practices continued in the post conflict period.

55    His Honour cited NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at [11] – [13] as authority for the proposition that the assessment and weight to be given to country information is a matter for the Tribunal.

56    His Honour further noted paragraph 41 of the first respondent’s submissions, which stated:

41. Specifically, the article referred to (from pages 4 to 10) information on Tamils who returned to Sri Lanka and were subjected to detention and/or torture and/or ill-treatment. These reports however related to returnees who:

•    41.1 Were accused or perceived as being members of the LTTE (page 5[B]) and 10[M]).

•    41.2 Were former LTTE leaders (page 5-6[C]).

•    41.3 Maintained a close relationship with the LTTE international financial network (page 6[D]).

•    41.4 Was a deputy leader of the LTTE (page 7[F]).

•    41.5 Had delivered parcels for the LTTE (paged 9[J]).

•    41.6 Or whose profile was otherwise unknown.”

57    The primary judge said the Tribunal concluded that the appellant’s profile would not come within any of the categories outlined above.

58    Having regard to paragraph 41 of the first respondent’s submissions and the Tribunal’s findings as discussed above, the primary judge concluded the Tribunal’s finding at para [74] of its decision was indeed open to it. His Honour added that the Tribunal was entitled to give such weight to the country information as it saw fit and that the Tribunal did consider the country information now pressed by the appellant.

59    For these reasons, the primary judge concluded that no jurisdictional error had been demonstrated by reference to either ground, and so the application must be dismissed.

APPEAL TO THIS COURT

60    By notice of appeal filed on 23 September 2016, the appellant raised the following single ground of appeal:

The federal circuit judge erred in the judge failed to find that the Tribunal erred in law when the Tribunal had reviewed my review application.

61    The appellant did not file any further particulars of this general ground.

62    At the hearing of the appeal the appellant was self-represented and made oral submissions to the following effect. The appellant complained that at the Tribunal hearing, the interpreter did not properly interpret what he said and the judge did not fully take into account his evidence. He also added that he considered that the Tribunal member confused him in questions asked and accordingly, the answers he gave were not complete. He additionally added that if he had the opportunity, there were things about his life that he could now disclose, thereby implying that he had held back material matters from the Tribunal. Additionally, in the course of his submissions, the appellant suggested that the Tribunal member did not accept what was good about his case and only accepted those things that went against him. This seemed to suggest a challenge to the credibility findings made by the Tribunal as well as, perhaps, some degree of bias. He also raised questions about findings made concerning his travel to India at material times and the question of a bribe having been paid. Finally, he made some further submissions about the association with the LTTE and the goods held in the family shop, as well as abduction in 2010 and the complaint made by his mother, which he said he still has.

63    The Minister filed an outline of submissions on 9 February 2017, which stated as follows:

20    The task of the FCC was to determine whether the Tribunal's decision was affected by jurisdictional error: s.474 of the Migration Act 1958 (the Act): Plaintiff S15712002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the judgment of the Federal Circuit Court Judge is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].

21    The appellant's ground is no more than a bald assertion that the primary Judge failed to find jurisdictional error by the Tribunal. This ground is meaningless in the absence of further particulars.

22    In any event, the first respondent respectfully submits that the reasons of the primary Judge are without error. In reaching his findings the primary Judge considered the submissions of both parties, the factual circumstances of the matter and appropriately considered and applied relevant case law (see for example AB 379[24]-[25], 381[31] and 385[41]).

23    Accordingly, the first respondent submits that the grounds of appeal disclose no appellable error in the primary judge's decision and no jurisdictional error in the Tribunal's decision.

64    Accordingly, the Minister seeks an order that the appeal be dismissed, with costs.

CONSIDERATION

65    The single ground of the appeal, that the primary judge erred by failing to find that the Tribunal had erred lacks any appropriate specificity or particularisation.

66    As noted above, at the hearing of the appeal, the appellant was self-represented and made the oral submissions referred to above.

67    Construed beneficially, the appellant effectively sought by his ground of appeal to repeat the two grounds of his judicial review application in the Court below.

68    However, as to ground 1, that the Tribunal had committed jurisdictional error by failing to identify or assess an integer of the appellant’s claim, which was apparent on the material before the Tribunal, there was, in my view, no error made by the judge in concluding that there was no substantial, clearly articulated claim that relied upon established facts, concerning the appellant having a profile of a person suspected of links with the LTTE as a result of the supplied storage of groceries for the LTTE, or on the basis of having family links with any such persons.

69    I also consider that the primary judge’s finding that, to the extent it could be said that such a claim or claims were made, they were dealt with by the Tribunal’s findings including that the Tribunal did not accept the appellant was suspected of or perceived to be a member of the LTTE now, or would be in the future, or that he was wanted by or faced harm from the authorities.

70    As to the second ground, as particularised and dealt with by the primary judge on that basis, no error is disclosed in the primary judge’s finding that the appellant’s profile would not come within any of the categories of Tamils returning to Sri Lanka who would be subjected to detention and/or torture and/or ill-treatment.

71    In these circumstances, the appellant has failed to make out the sole ground of appeal in this Court that the primary judge erred in failing to find that the Tribunal had erred in law.

72    As to the oral submissions made by the appellant at the hearing, they are not issues that were raised as part of the judicial review proceeding before the primary judge. Undoubtedly, leave to raise them now would be required. There is nothing about the merits of any of the matters that the appellant would now raise that could justify the grant of such leave.

73    At [34] of the Tribunal’s reasons, it dealt expressly with the question of the interpreter used at the Tribunal hearing, and the Tribunal noted that the appellant was satisfied with the interpretation process. It is clear from the Tribunal record that no issue concerning interpretation was identified at that hearing. As I have noted, nor was any question of interpretation raised in the judicial review proceedings before the primary judge.

74    The other questions raised by the appellant concerning the nature of the hearing he had before the Tribunal, the fact that findings were made against him, the suggestion that there may have been some bias by the Tribunal member, and the like, all go to the merits of the case that the appellant presented. The Tribunal found against the appellant on questions of credibility and also on the primary questions raised under the Act, having regard to the facts of the case. In effect, the appellant sought to reargue the case that he presented at the Tribunal, before the Court on the appeal. No questions of law are obviously raised in that regard.

75    Finally, there is no evidence to suggest any bias on the part of the Tribunal in the findings made or conduct of the hearing.

76    For these reasons, the appellant should not have leave to raise any of the issues that were the subject of his oral submissions at the hearing.

Conclusion and orders

77    For these reasons the appeal should be dismissed with costs.

78    The Court orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the costs of the first respondent to be taxed, if not agreed.

Associate:

Dated:    16 February 2017