FEDERAL COURT OF AUSTRALIA

BZS15 v Minister for Immigration and Border Protection [2017] FCA 1349

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed with costs.

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

REASONS FOR JUDGMENT

NORTH J:

1    Before the Court is an application filed on 4 August 2017, for an extension of time within which to appeal from orders made by the Federal Circuit Court on 7 June 2017.

2    The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal made on 18 September 2015. The Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a protection (Class XA) visa.

3    The applicant is a 36 year old citizen of Sri Lanka of Tamil ethnicity. His religion is Hinduism. He lived in the Vavuniya District before coming to Australia in August 2012. During the civil war in Sri Lanka, the applicant and his family lived in internally displaced person’s (IDP) camps.

4    The applicant claimed that he feared persecution because:

•    of his Tamil ethnicity (race),

•    of his imputed political opinion as a former supporter of the Liberation Tigers of Tamil Eelam (LTTE),

•    he is a member of a particular social group – Internally Displaced Tamil male,

•    he is a member of a particular social group – a failed asylum seeker who departed Sri Lanka unlawfully and/or as a Tamil male from North Sri Lanka.

5    The applicant told the Tribunal that in 2001 he was recruited by the Liberation Tigers of Tamil Eelam (LTTE) to smuggle goods across checkpoints. In 2003, he was again instructed by the LTTE to smuggle goods through one of Sri Lanka’s most significant military checkpoints. Then, in 2012, a friend of the applicant in the Sri Lankan army disclosed that he had assisted the LTTE. The applicant was then detained and beaten with a steel pole by six Sri Lankan army officers and had to seek medical treatment. The applicant did not include the detention and beating in his entry interview made in January 2013. He said that he did not disclose those facts to Australian authorities because he was scared that he would become known to Sri Lankan authorities. However, included in the documents provided by the applicant was a complaint about these events made by his wife to the Human Rights Commission in Sri Lanka in April 2013.

6    The Tribunal did not accept that the applicant had smuggled goods for the LTTE or that he had been tortured because of any suspected assistance provided to the LTTE. The Tribunal found that the applicant was not of interest to the Sri Lankan authorities because of any links to the LTTE.

7    The Tribunal then considered whether the applicant had grounds to fear persecution as a result of his Tamil ethnicity and concluded:

73.    Having regard to the applicant’s profile, the Tribunal finds the applicant’s claims of persecution based on his Tamil ethnicity are not supported by the DFAT country reports. Having regard to the country information, the Tribunal does not accept there is a real chance he will be persecuted because of his Tamil ethnicity (race) should he return to Sri Lanka in the reasonably foreseeable future. The Tribunal finds the applicant’s fear of persecution because of his race is not well-founded.

8    The Tribunal rejected the applicant’s claimed fear of persecution for the reason that he was a failed asylum seeker who had departed Sri Lanka illegally for the following reasons:

87.    The Tribunal accepts, therefore, that the applicant will be questioned at the airport. The Tribunal also accepts that there is a possibility he will be held for a limited period in remand whilst waiting bail, but DFAT has reported that returnees are transported by police to the Magistrates Court in Negombo at the “first available opportunity” and it is only if a magistrate is not available because of a weekend or a public holiday that those persons who are charged are taken to the nearby Negombo prison. The Tribunal accepts that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance and limited reform regarding violence and maltreatment. However, the Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for only a short period in remand and will then be bailed.

…

90.    The penalties eventually imposed on returnees by the courts for illegal departure take the form of fines ranging from 50,000 to 200,000 LKR. However, DFAT was informed in March 2014 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally and the fines levied by the Magistrates Court in Colombo are typically about 5,000 Sri Lankan Rupees (around AUD 40) to act as a deterrent. The Tribunal accepts on the basis of the information discussed above that the applicant would be subjected to such processes on return.

91.    The Tribunal is not satisfied that the scale of the fine is such that it amounts to serious harm. Further, the Tribunal considers that the evidence indicates that anyone who has left Sri Lanka illegally may be subject to a fine for doing so and there is also no evidence of differential treatment in the application of the fine.

…

93.    The Tribunal considers that factors in relation to returnees apply to anyone who has left Sri Lanka illegally. The Tribunal is not satisfied therefore, that questioning, arrest, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). Furthermore, the Tribunal does not accept that any of this amounts to persecution for a Convention reason. The Tribunal considers that the elements of the processing of returnees, and any penalties to which the applicant may be subjected, will be applied on a non-discriminatory basis under a law of general application.

[Footnotes omitted.]

9    By an amended application filed 6 January 2017, the applicant applied to the Federal Circuit Court for a review of the decision of the Tribunal.

10    The grounds of the application were:

1.    The Tribunal fell into jurisdictional error by not assessing my claims cumulatively of being a Tamil Hindu male from North of Sri Lanka associated with LTTE and was tortured by the Sri Lankan Authorities due to my profile.

2.    The Tribunal’s finding that it does not accept that my wife filed report with Human Rights Commission, Sri Lanka and the Sri Lankan authorities continue to have interest on me were not supported by evidence.

3.    The Tribunal fell into jurisdictional error by not assessing my integer claims.

4.    The Tribunal has not assessed my claims that I will suffer serious harm under section 91R of the Migration Act on my return to Sri Lanka due to my profile.

5.    The Tribunal’s finding that questioning, arrest and the poor conditions in remand is not amount to systematic and discriminatory as required by s.91R(1)(C) is so illogical and irrational and not supported by evidence.

6.    The Tribunal erred in its construction of the phrase “intentionally inflicted” as it fell into Jurisdictional error because it only considered whether there was an “actual, subjective, intent” to cause harm to the applicant (the harm being exposure to poor prison conditions) and failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions. (SZTAL-v- Minister for Immigration and Border Protection {2016} FACFC 69 – Subject to High Court Appeal – S272/2016)”

11    The Federal Circuit Court rejected ground one as follows:

14.    The Tribunal carefully considered each of the Applicant’s claims arising from his Tamil ethnicity, his former support of the LTTE and his claimed membership of a particular social group of Tamil males from North Sri Lanka. It is also considered but rejected the Applicant’s factual claim to have been tortured by the Sri Lankan Army.

15.    These claims were also considered cumulatively, as set out in paragraph 95 of the Decision Record, relevantly:-

“…having considered the country information referred to by the applicant's representative, and the UNHCR guidelines the Tribunal accepts that the authorities in Sri Lanka have dealt harshly with people they consider in opposition to them and this has included Tamils associated with the LTTE and sympathisers. However, having considered the applicant's claims cumulatively and his personal circumstances, the Tribunal does not accept that he has a profile with the Sri Lankan authorities due to his imputed or actual involvement or support for the LTTE, either because of his Tamil ethnicity or because he is a Tamil male from northern Sri Lanka or an Internally Displaced Tamil male or by virtue of departing Sri Lanka illegally.”

12    As to ground two, the Federal Circuit Court held that the Tribunal did not reject the claim that the applicant’s wife had lodged a complaint with the Human Rights Commission in Sri Lanka. It accepted that she had. Then the Federal Circuit Court said:

18.    As to the Applicant’s complaint that the Tribunal did not accept that the Applicant was of ongoing interest to the authorities, such finding was based on inconsistencies and implausibility in the Applicant’s evidence and again a finding open to the Tribunal on the evidence before it. Moreover, the Tribunal canvassed with the Applicant matters of concern to it and sought his response which was provided at the hearing and in part in his submissions following the Tribunal hearing.

13    The Federal Circuit Court rejected grounds three and four for the reason that the Tribunal considered each of the claims made by the applicant.

14    The Federal Circuit Court set out the reasons of the Tribunal in relation to ground five, the essence of which his extracted at [8] of these reasons for judgment. The Federal Circuit Court held that the Tribunal’s conclusion about the treatment likely to be experienced by the applicant as a failed asylum seeker who had left Sri Lanka illegally was based on probative country information and cogent reasons. The weight to be given to the evidence was a matter for the Tribunal.

15    Finally, the Federal Circuit Court in relation to ground six set out the following passage from the Tribunal’s reasons:

100.     The Tribunal is not satisfied that during any questioning at the airport that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of 'degrading treatment or punishment'. The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.

[Footnotes omitted.]

16    The Federal Circuit Court then said:

In SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 (‘SZTAL’) at [52]-[53], Judge Driver found that the concept of “intentionally inflicted” connoted the existence of an actual, subjective intention as reasoned by the Tribunal in this proceeding. On appeal, the Full Court of the Federal Court of Australia found the primary judge not to have erred in construing this expression. The Court is bound by this authority.

17    The relevant matters to be considered on an application for an extension of time within which to lodge a notice of appeal are whether there is an acceptable explanation for the delay, what was the length of the delay, whether there are reasonable prospects of success of the appeal, and whether there is prejudice to any other party flowing from the delay.

18    The delay in this case was 37 days. There is some conflict in the evidence about the reason for the delay, but it is unnecessary to resolve that conflict in the circumstances of this application.

19    The Minister does not assert any prejudice flowing from the delay.

20    The prospects of success of the appeal depend on the grounds asserted in the draft notice of appeal as follows:

1.    The learned judge erred in holding with the Tribunal that the Human Rights Commission Complaint Card to be of little assistance. Such finding was so unreasonable and illogical which could trigger jurisdictional error.

2.    The learned judge erred in her finding that the Tribunal considered the applicant’s claim cumulatively. Clearly the Tribunal has not considered the integer claims of being a Tamil Hindu male from North of Sri Lanka associated with LTTE and was tortured by the Sri Lanka authorities. More particularly, no where in its decision his religion of being Hindu was considered.

3.    The Tribunal erred in its construction of the phrase " intentionally inflicted" as it fell into jurisdictional error because it only considered whether there was an "actual subjective intent" to cause harm to the applicant . (the harm being exposure to poor prison conditions) and failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions. {SZTAL-v- MIBP 2016 FCAFC 69}.-This matter is heard by High Court- S272/2016- Judgment reserved. The outcome of the High Court decision will have an impact on this appeal.

21    The first ground was not raised before the Federal Circuit Court. On appeal the applicant would require leave to raise it. That is an obstacle for the applicant, albeit perhaps not a significant one. The Tribunal dealt with the Human Rights Commission complaint as follows:

39.    The Tribunal questioned the applicant about a copy of a document titled Human Rights Commission of Sri Lanka Vavuniya Complaint No. HRC/V/96/2013 provided in support of his claim. The applicant said that since he arrived in Australia the SLA have visited his wife’s house asking questions about him on about three occasions. He claims the last visit by the SLA was in about April 2013. He claims he spoke to his wife and she was worried and he told her to make a report to the HRC about what had happened to him in Sri Lanka. He claims the document provided to the Tribunal is a confirmation of the complaint made to the HRC in Sri Lanka.

40.    The Tribunal told the applicant it found it inconsistent that he would claim that he was frightened to disclose to the Australian authorities his involvement with the LTTE when interviewed in January 2013 but on the other hand told his wife to disclose details of his claims to the HRC in Sri Lanka in April 2013, before he lodged his protection visa application. The Tribunal asked the applicant if he had details of the submissions that were made to the HRC in support of his claims. The applicant said his claims had not yet been investigated and his wife was given a card registering the complaint. The Tribunal has had regard to the Sri Lankan HRC complaint card dated 2013 but finds it of little assistance.

22    The applicant sought to rely on the complaint made by his wife to confirm the events of torture to which he had given evidence. It was open to the Tribunal to give the document little weight when it considered the totality of the evidence about the alleged torture. The complaint was made at the applicant’s initiative and it was open to the Tribunal to regard it as no more persuasive than his own evidence. That evidence was not believed.

23    As to ground two, the Federal Circuit Court was correct to conclude that the Tribunal had dealt with all of the applicant’s claims. There is no error in the reasons expressed by it. The Tribunal did not refer to a separate claim based on the applicant’s Hindu religion. The material does not suggest that such a separate claim was raised.

24    Ground three attacks the approach of the Tribunal in [100] which is extracted at [15] of these reasons for judgment.

25    The notice of appeal asserts the Tribunal wrongly required that the harm alleged be intentionally inflicted. As a result of the High Court judgment in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 the interpretation adopted by the Tribunal was correct.

26    The applicant appeared without legal representation on the hearing of the application but was assisted by an interpreter in the Tamil language. The applicant said that the Tribunal did not take into account UNHCR documents provided to him in an IDP camp. He did not identify the documents in question. Ms Briffa, who appeared on behalf of the first respondent, correctly observed that there was no dispute that the applicant lived in the IDP camps. The applicant also said that the Tribunal did not consider the Human Rights Commission complaint made in Sri Lanka by his wife. That is wrong in fact.

27    Additionally, the applicant said that the Tribunal did not ask him any questions about country information but instead relied on Google searches. There is no jurisdictional error disclosed by that general comment. The reasons of the Tribunal disclose a thorough examination of country information sources. The applicant concluded by asking the Court for another chance to put his case again. The role of the Court is to consider whether the Federal Circuit Court fell into error, not whether the applicant generally deserves a second chance to put a case.

28    The arguments proposed for the appeal do not have a reasonable prospect of success. That alone is a sufficient reason to refuse the application for an extension of time within which to appeal. The application is refused with costs.

Associate:

Dated:    17 November 2017