FEDERAL COURT OF AUSTRALIA

BWM15 v Minister for Immigration and Border Protection [2017] FCA 1157

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs.

3.    The Appellant provide any response to the affidavit of Mr Thomas Shaw filed on 16 November 2016 on the amount of costs payable within 14 days.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an appeal from the Federal Circuit Court. On 2 August 2016, that Court dismissed the present Appellant’s application for judicial review of an earlier decision of the Administrative Appeals Tribunal (‘the Tribunal’). The Federal Circuit Court’s decision is reported as BWM15 v Minister for Immigration and Border Protection [2016] FCCA 2207. The Tribunal had, in turn, affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection (‘the Minister’) to refuse to grant the Appellant a protection visa.

2    To understand the Appellant’s case in this Court, it is necessary to understand a little more about his claim for a protection visa. The Appellant is a citizen of Sri Lanka who arrived in Australia on 20 July 2012 at Christmas Island aboard a vessel codenamed ‘Lota’. He subsequently applied for a protection visa on 13 December 2012. He is ethnically Tamil although he was educated in Sinhalese.

3    In his application, he claimed to have been treated badly by the Sinhalese on account of his Tamil ethnicity. He then changed his name to a Sinhalese one. However, this did not help as he then found himself harassed not only by the Sinhalese (who were not fooled by the change of name) but by Tamils too (because they were unimpressed that he had changed his name).

4    The Minister’s delegate concluded that the Appellant’s claims to have been mistreated were not credible. He accepted that the change in the Appellant’s name had given rise to arguments with other Tamils, but he did not accept that it had resulted in physical altercations or ongoing threats by Tamils. He also did not accept that there would be any problem with the Sinhalese.

5    Consequently, the delegate concluded that the Appellant did not have a well-founded fear of persecution for a Convention reason. He also rejected a claim for complementary protection.

6    The delegate refused the application on 13 March 2014 and the Appellant applied for a review of that decision by the Tribunal on 25 March 2014. The Tribunal invited the Appellant to attend a hearing before it and this eventually took place on 16 July 2015.

7    The Tribunal did not accept the Appellant’s claims. It commenced its consideration of them by giving reasons for why it regarded the Appellant’s claims generally not to be credible. Largely, these related to issues such as the changing nature of the Appellant’s version of events over time and also with respect to certain parts of his account which the Tribunal did not think were plausible. It then dealt with the Appellant’s particular claims. These, and the Tribunal’s treatment of each of them, were as follows:

8    The first claim concerned the Appellant’s fear of harm arising from his change of name. He said that he feared harm not only from the Sinhalese community but also from the Tamil community. The Tribunal rejected this claim concluding that it was not satisfied that his change of name would give rise to any difficulties for him if he were returned.

9    The second claim was that the Appellant feared harm because of his Tamil ethnicity. The Tribunal accepted that following the civil war, Tamils were at risk from the Sinhalese majority. And it accepted that even now some Tamils with increased risk profiles (e.g. human rights activists or journalists) continued to be exposed to risk. The Tribunal, however, did not think that the Appellant fell into any of those categories (he is a fisherman). Consequently, it did not think that the Appellant’s claims on this basis were well-founded.

10    The third claim was that the Appellant would be perceived, by reason of his Tamil ethnicity, to be a supporter of the LTTE (the Tamil separatist movement). This was a claim of imputed political opinion. The Tribunal saw no such difficulty arising merely from the Appellant’s change of name and Tamil ethnicity. It also considered whether the fact that he had departed Sri Lanka illegally and unsuccessfully sought asylum in Australia would alter the situation, but concluded that it would not.

11    The fourth claim was that the Appellant would be harmed on his return to Sri Lanka because he was a failed asylum seeker. This claim was not actually made by the Appellant and the Tribunal considered it ex mero motu. The Tribunal accepted that failed asylum seekers in Sri Lanka could be a social group within the meaning of the Convention. It also accepted that there were recent reports of failed asylum seekers being tortured on their return to Sri Lanka. However, the Tribunal concluded that these cases involved persons who had done more than merely fail to get asylum. They usually involved persons with a profile with the LTTE. The Tribunal did not think that the Appellant had such a profile.

12    Nevertheless, it did accept that the Appellant would likely be detained for several hours on his return to Sri Lanka as standard checks were carried out. Ultimately, the Tribunal concluded that the Appellant did not face a real chance of serious harm at the hands of the authorities if he were to be returned to Sri Lanka.

13    The final claim was based on the fact that the Appellant had departed Sri Lanka illegally. The Tribunal accepted that the Appellant had departed illegally. It concluded that he would most likely be arrested on his return and taken before a magistrate but that bail was likely to be granted reasonably quickly. It considered it possible, nevertheless, that he might be held at Negombo prison, whilst this was arranged, for a day or so. However, there was no evidence that persons in that prison were mistreated. Further, so far as penalty was concerned, although a custodial sentence for illegal departure was open as a sentencing option, the Tribunal thought that the usual penalty would be a fine. It noted that higher penalties had been imposed in some cases but there was usually an additional circumstance, such as people smuggling, involved in such cases.

14    Having reviewed these matters, the Tribunal expressed itself satisfied that the Appellant would not suffer any more than some delay at the airport and perhaps a few days’ detention if returned. It did not accept that this would be serious harm.

15    In light of that, the Tribunal concluded that the Appellant did not satisfy the requirements of the Convention. It also concluded that no complementary protection obligations arose, largely for the same reasons. It therefore affirmed the delegate’s decision on 4 September 2015.

16    On 12 September 2015, the Appellant filed an application for judicial review in the Federal Circuit Court. Two grounds of review were advanced in the application. The first of these was that the Tribunal’s decision had been unsupported by any evidence. The second was that the Tribunal had failed to deal fully with the Appellant’s difficulties. The application was also accompanied by an affidavit which made the point that if the Appellant were returned to Sri Lanka he would be arrested and persecuted.

17    The application was heard in the Federal Circuit Court on 2 August 2016 which dismissed the application with costs assessed at $6,825. The primary judge considered both of the grounds in the application and an additional matter raised by the Appellant at the hearing. That matter was a contention that the Tribunal should have done more to investigate the particular circumstances of his claim. His Honour rejected this argument, correctly in my view, on the basis that the Tribunal’s obligations to conduct a hearing did not extend nearly so far. As to the two grounds in the Appellant’s judicial review application, the Court thought that it was clear that the Tribunal had considered the Appellant’s claims and so rejected the second ground that it had not considered his position. The Court dealt with the first ground as being, in effect, an omnibus attack on the Tribunal’s conclusions. But his Honour could detect no error.

18    Accordingly, his Honour dismissed the application for judicial review. This occurred on 2 August 2016. The Appellant then filed a notice of appeal in this Court. Ground 1 proceeded on an assumption that the primary judge had not delivered reasons for dismissing the proceeding. It is clear enough, however, that his Honour dismissed the proceeding following the delivery of oral reasons which were subsequently distributed when corrected in written form. By the time of the hearing in this Court, the Appellant had been in possession of his Honour’s reasons for some time. As such, there is nothing in this point.

19    Ground 2 was an argument that his Honour had not given the Appellant an opportunity to present his case. In pursuit of that ground, the Appellant put before the Court a transcript of the proceeding in the Federal Circuit Court. That transcript reveals that there was an interpreter present for the hearing in the Court below. The transcript is only seven pages in length. I have read it and it does not appear to me that the Appellant was not provided with an opportunity to put his case. He was asked what he wished to say in chief and responded with the very argument then dealt with by the primary judge in his judgment. The Appellant was also given the opportunity to reply. I do not think there is any substance to the proposition that the Appellant did not get an opportunity to present his case on the application.

20    There was a second aspect to ground 2 which was an argument that his Honour should have done more for the Appellant as an unrepresented litigant. Reference was made to the Full Court’s decision in SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; (2015) 229 FCR 317 (‘SZWBH’). There, at 324 [26], in the context of another refugee proceeding, the Full Court observed that the unrepresented appellant in that case was ‘ill-equipped’ to deal with the procedural situation that had then arisen. The procedural situation in that case was the action of a judge in deciding to dismiss an application for judicial review summarily, at its first return date, without any notice being given to the unrepresented litigant that this would occur. The circumstances of SZWBH were quite exceptional.

21    The Appellant nevertheless submitted that a perusal of the transcript shows that the primary judge in this case did not:

    explain that the Appellant could lead further evidence on the appeal; or

    explain what constituted legal error.

22    I agree that the transcript shows that neither of these matters was raised by the Judge. But I do not think that this involved any error on his Honour’s part. It may technically have been feasible for further evidence to have been led before his Honour. But no effort was made in this Court to show what this additional material was or might have been. Hence, it is not possible to gauge whether this argument goes anywhere. Nor do I think that his Honour erred in not explaining the kinds of legal error cognisable on a judicial review action. It is not for a judge to enter the arena and give affirmative assistance to one side. Certainly, a judge may assist a litigant on aspects of procedure but there are real difficulties for a judge in getting involved in the substance of a case. In any event, it is not clear to me what would have flowed even if such an explanation had been given.

23    Each of the grounds fails. The appeal must be dismissed with costs.

24    At the time judgment was reserved on 24 November 2016, the High Court had just granted special leave to appeal from this Court’s decision in SZTAL v Minister for Immigration and Border Protections [2016] FCAFC 69; (2016) 243 FCR 556. That case was concerned with whether, for the purposes of the complementary protection regime, pain had to be intentionally inflicted and whether that intention was required to be subjectively held. This was arguably relevant to the position of the Appellant in Negombo prison. The High Court dismissed the appeal on 6 September 2017: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. That being so, no argument based on Negombo prison is now available. For that reason, I have now proceeded to judgment.

Associate:    

Dated:    29 September 2017