FEDERAL COURT OF AUSTRALIA

BDQ15 v Minister for Immigration and Border Protection [2018] FCA 436

Appeal from:

Application for leave to appeal: BDQ15 v Minister for Immigration & Anor [2017] FCCA 162

File number:

VID 143 of 2017

Judge:

BURLEY J

Date of judgment:

4 April 2018

Catchwords:

MIGRATION refusal of a protection visa application whether the primary judge erred in misconstruing the appellant’s submissions in relation to the appellant’s bail and his bail conditions whether there was jurisdictional error on the part of the Tribunal appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 36

Date of hearing:

23 February 2018

Date of last submissions:

26 February 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

43

Solicitor for the Appellant:

Mr S Hodges of Hodges Legal

Counsel for the First Respondent:

Ms C L Symons

Solicitor for the First Respondent

DLA Piper

Counsel for the Second Respondent

The Second Respondent filed a submitting appearance, save as to costs

ORDERS

VID 143 of 2017

BETWEEN:

BDQ15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BURLEY J

DATE OF ORDER:

4 April 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a 30 year old Tamil man who is a Sri Lankan citizen. He arrived in Australia via boat at Christmas Island as an unauthorised arrival in July 2012 and was granted a Bridging Visa. In December 2012 he made an application for a Protection (Class XA) Visa (Visa) pursuant to s 36 Migration Act 1958 (Cth) (Act) on the basis that he feared to return to Sri Lanka because the authorities there suspect him of being a member of the Liberation Tigers of Tamil Eelam (LTTE) and as a consequence he fears that he will be arrested on arrival or kidnapped, tortured and possibly killed.

2    On 9 October 2013 a delegate (delegate) of the Minister for Immigration and Border Protection (Minister) refused the appellant’s application and he subsequently applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) for a review of the decision. On 26 May 2015 the Tribunal affirmed the decision of the delegate not to grant the Visa. The appellant then applied to the Federal Circuit Court of Australia (FCCA) for orders overturning the decision of the Tribunal. On 2 February 2017 a judge of the FCCA ordered that the appellant’s application for judicial review be dismissed.

3    On 21 February 2017 the appellant filed a Notice of Appeal in this Court.

4    The appellant was represented by Mr Stephen Hodges, solicitor, at the hearing of the appeal. In written submissions filed prior to the hearing he indicated that the appellant now relies only on one ground of appeal which is as follows:

The Judge in the Federal Circuit Court erred in finding that the Tribunal had not committed jurisdictional error by misconstruing the appellant’s submissions in relation to the appellant’s bail and his bail conditions.

5    The Minister was represented at the hearing by Ms Catherine Symons, of counsel, who did not oppose the grant of leave to rely on this ground. She filed written submissions in response contending that the primary judge had correctly dismissed the appeal.

2.    THE DECISION OF THE TRIBUNAL

6    The appellant appeared before the Tribunal, gave evidence and provided it with a number of documents. He was assisted by a Tamil/English interpreter and was represented by a registered migration agent.

2.1    The Appellant’s claims

7    The appellant’s claims were substantially set out in a statutory declaration that he gave in support of his visa application, made in December 2012. It provides that in around 2002 the appellant moved with his family to Colombo in order to avoid forcible recruitment to the LTTE. At that time he was around 15 years of age. Sometime later he started working at a plastic company. In about 2008, when he was about 21, he began working as a taxi driver.

8    In October 2008 he was arrested with two or three of his friends who had come to visit him from his home town (see further discussion on this point at paragraph 18 below), and two of his brothers. It was a Hindu festival day and they were on their way to the temple. They were taken to the criminal investigation division (CID) offices and interrogated to see if they were linked to the LTTE. During the interrogation he was beaten and tortured and his right index finger was cut with scissors. He was interrogated by 5 different groups of officers. While in detention the International Committee of the Red Cross visited them, but CID officers threatened them with harm if they explained to the Red Cross how they had been treated. The appellant understood that shortly after they were arrested they were identified in a Sinhalese newspaper as being 6 LTTE members who had been arrested. He said that soon after, posters of their photos appeared in the police office.

9    The appellant claimed that on about 27 November 2008 the court found that they had no connection with LTTE and released them. He and his friends were then ordered by the CID to report to them every day until further notice. The day after their release the appellant’s friends disappeared without telling him where they were going. The appellant formed the view during their incarceration that his friends were all associated with the LTTE. After his release, he reported to the CID every day for two weeks but he was fearful because his friends had disappeared and he was the only one reporting to the CID. He went into hiding and stayed at the plastic factory where he had previously worked.

10    In September 2009 he travelled to India for about 25 days to attend a family wedding. The owner of the plastic factory accompanied him to the passport office and he obtained a tourist visa. He investigated staying in India but could not do so and was concerned that supporters of the Sri Lankan government in India would pass on information about him. Whilst he was in hiding he went to visit his family in Jaffna about 5 times. Also while he was in hiding the CID visited his uncle’s house three times asking about the appellant’s whereabouts. His uncle and his father were also interrogated at the police station. The police informed them that the appellant had committed a very serious crime and that the punishment would be severe if he did not hand himself in.

11    At the beginning of December 2011 the appellant’s mother called him and told him that two of the three friends who had been arrested with him in 2008 had been taken by unknown people whilst they were in hiding in Jaffna. He suspected that they were CID officers.

12    In December 2011 the CID visited the plastic factory where he was hiding. The security guard did not let them in, however, when they returned a second time the owner of the factory informed him that he could not protect him any longer. The owner and the appellant’s father then made arrangements for the appellant to go to Malaysia, where the appellant subsequently made arrangements to go to Australia.

13    The appellant believes that even while he is in Australia the CID continue to search for him. They contacted his brother asking for his whereabouts while he was on Christmas Island. In a second statement, made following the decision of the delegate in December 2014, the appellant refers to becoming aware that in September 2014 his father was interrogated by the CID for a whole day during which they asked him about the whereabouts of the appellant.

2.2    The Tribunal’s consideration of the claims

14    The Tribunal summarised the contents of the appellant’s statement, but expressed significant concerns in relation to his version of events about what happened in Sri Lanka and concluded that the appellant had not been truthful in relation to his claims. The Tribunal identified 8 reasons for its conclusion that it was not satisfied that the appellant was imputed with a pro-LTTE profile as a result of his arrest in October 2008. These are briefly summarised below.

15    First, the Tribunal identified inconsistencies between aspects of the evidence given in his entry interview and his subsequent claims made before the Tribunal including the reason why he was arrested. In his entry interview he stated that he understood that he was arrested because there were a lot of vehicles and a lot of people coming and going around the house where he was living. However, before the Tribunal he claimed that he was arrested because he was driving around three friends from Jaffna who he thinks were associated with the LTTE.

16    Secondly, the Tribunal considered that the appellant’s ability to depart legally from Sri Lanka on two occasions, when he went to the wedding in India in 2009 and when he departed for Malaysia in 2011 or 2012, was indicative that he was not of current interest to the Sri Lankan authorities. The Tribunal found that the circumstances suggested that the Sri Lankan authorities did not have any adverse interest in the appellant after his release in 2008.

17    Thirdly, the Tribunal found that the appellant’s evidence about the requirement that he report to the CID daily after his release was so inconsistent and unpersuasive as not to be credible. The Tribunal records that during the course of the hearing the appellant stated that he reported to the CID for one week after his release before he went into hiding. This was inconsistent with the evidence that he gave at his entry interview where he stated that he had reported for one month after his release. Each is inconsistent with his statutory declaration in which he claims that he had reported for two weeks after his release. The Tribunal also pointed to inconsistencies in the appellant’s evidence as to how long his Tamil friends had reported to the police. The Tribunal concluded that it was not satisfied that either the appellant or his co-accused were required to report to the CID after their release at all.

18    Fourthly, the Tribunal observed that the appellant’s central claim was based on his arrest in October 2008 for driving around people from Jaffna who he now believes are associated with the LTTE. This was not consistent with the evidence given at his entry interview (see above at paragraph 15). The appellant’s evidence was also inconsistent as to the nature of his relationship with those people from Jaffna. In the departmental interview, the appellant stated that they were friends of his uncles and that the applicant did not know them. Before the Tribunal he stated that he drove them around and that they were friends of his father who the appellant knew from his home area. In his statutory declaration the appellant refers to these people as three friends of his from Jaffna.

19    Fifthly, the Tribunal referred to inconsistencies in the appellant’s evidence about what happened to his co-accused after their release, which it found to be so inconsistent as to not be credible.

20    Sixthly, the Tribunal found that the appellant’s evidence as to where he was living after his release was so inconsistent as to not be credible. In this regard the Tribunal did not accept that the appellant would go into hiding immediately upon his release at a time when he was still reporting to the CID on a daily basis. Further, during the time that the appellant claimed to be in hiding, he also stated that he had travelled through government checkpoints on 4 or 5 occasions, that he had attended a government passport office to obtain his passport to go to India and that he had legally departed and re-entered Sri Lanka on a passport under his own name. These acts were inconsistent with him being in hiding. Furthermore, the Tribunal pointed to inconsistencies between his statutory declaration and his entry interview regarding the date when he went into hiding, and his entry interview and his evidence before the Tribunal as to whether he returned home or remained in hiding at the plastics factory after he was released and after he returned from India.

21    Seventhly, the appellant gave inconsistent evidence as to the number of times that the authorities came looking for him at the plastic factory after he was released. Before the Tribunal, the appellant claimed the authorities visited lots of times. However, in his written evidence he claimed that the authorities visited twice and that upon the second occasion the owner of the plastics factory said that he could no longer protect the appellant.

22    Eighthly, in his oral evidence before the Tribunal the appellant said that he did not know whether the authorities had any evidence against himself or his co-accused of LTTE involvement. This was inconsistent with his written statement where he referred to the CID having hacked his co-accused’s emails and found incriminating photographs. The Tribunal considered that although the inconsistency alone may not be considered significant, when taken with the other concerns expressed, the Tribunal had doubts about the claim that the appellant was associated with former LTTE members.

23    The Tribunal concluded that for these reasons it was not satisfied that the appellant had been truthful in relation to his claims. It is relevant to the ground of appeal currently advanced to set out its conclusions in this regard at [34] (emphasis added):

As a result of the above concerns, when considered cumulatively, the Tribunal is not satisfied that the applicant has been truthful in relation to his claims. The Tribunal is not satisfied that after his release the applicant was required to report to the CID, that he went into hiding or that he was of adverse interest to the CID. On the basis of the court document provided and the applicant’s consistent evidence across a number of interviews, the Tribunal is willing to give the applicant the benefit of the doubt and accepts that he was arrested on 27 October 2008 and held for a month, along with his two brothers, on suspicion of LTTE links. The court document states that there is no information linking the applicant (and his co-accused) to terrorist activities or other crimes and the applicant states in his written statement that “the court found that we had no connection with LTTE and they released us”. Although the document refers to them being released on “appropriate bail” it does not state what this was. For the reasons set out above, the Tribunal is not satisfied that the applicant was required to report to the CID or that he was of adverse interest to the authorities after this. Therefore, the Tribunal finds that the applicant was cleared of any links to the LTTE, that he was not the subject of any adverse attention from the Sri Lankan authorities from November 2008 until his departure in 2011 and that he does not hold a pro-LTTE profile in Sri Lanka. The Tribunal notes that the arrest of the applicant occurred during the civil war and country information (as discussed below) suggests that there has been a significant change in the situation for Tamil since the end of the war. The Tribunal does not accept that his detention once in 2008 indicates that he would again be imputed with a pro-LTTE profile if he was to return now, some 7 years later.

24    The court document to which the Tribunal refers is addressed in more detail in relation to the current ground of appeal. The translated version is entitled “Sri Lanka Police Information provided to Magistrate”. It is addressed to the Magistrate from the Officer in Charge of Wattala, who is reporting that certain named policemen investigated a complaint on the listed suspects (who include the appellant). It then relevantly provides:

[named police officers] have arrested the following suspects at [address] for questioning upon the intelligence reports received of their involvement in terrorist activities:

[suspects names listed]

The investigations carried out so far have not revealed any information linking these suspects to terrorist activities or other crimes. Therefore I request the Hon court to release them on appropriate bail.

The police request that the suspects be released.

25    In the result, the Tribunal was not satisfied that the appellant was imputed with a pro-LTTE profile as a result of the arrest in October 2008. It concluded that having considered the appellant’s claims individually and cumulatively, it was not satisfied that he is a person in respect of whom Australia has protection obligations and that he does not satisfy the criterion set out in s 36(2)(a) of the Act. The Tribunal also concluded that it was not satisfied that the appellant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act.

3.    THE DECISION OF THE FCCA

26    Before the FCCA the appellant relied upon a Further Amended Application for judicial review which set out two grounds. He was represented by counsel at the hearing.

27    The grounds were as follows:

[Ground 1] The Tribunal failed to determine the review application according to law.

Particulars

a) The Tribunal failed to deal with an essential integer of the Applicant’s claim by not determining whether his release on “appropriate bail” would put him at risk of serious or significant harm if he were returned to Sri Lanka.

b) The Tribunal equated the granting of bail with the Applicant being exonerated of the allegations of support for the LTTE rather than a temporary measure pending further investigation.

c) The Tribunal did not make findings as to whether the applicant would be at risk of serious or significant harm because he did not comply with his bail.

[Ground 2] The Tribunal misconstrued the Applicant’s evidence.

Particulars

a) The Tribunal misconstrued the evidence provided by the Applicant in relation to his father’s complaint to the Sri Lankan Human Rights Commission (“SLHRC”) by finding that he had no reason to make a complaint in July 2013 concerning the Applicant whereas the complaint itself states that he was beaten and questioned by the CID in relation to the Applicant and this prompted his complaint.

b) In misconstruing the Applicant’s evidence, the Tribunal failed to properly evaluate the prospective risk of serious or significant harm to the Applicant in the context of his release on bail and claim that the authorities still had a continuing interest in him.

28    The learned primary judge considered each of these grounds in some detail and determined that the application for review should be dismissed.

29    The appellant did not rely on a ground equivalent to ground 2 before this Court, and it is not necessary to consider it further. I address the primary judge’s treatment of ground 1 in the context of consideration of the current ground of appeal in section 4 of these reasons.

4.    THE APPEAL

4.1    The submissions

30    In his appeal the appellant contends that the FCCA erred by misconstruing the appellant’s submissions in relation to the appellant’s bail and bail conditions and thereby erred by failing to find that the Tribunal had committed jurisdictional error. In oral submissions the appellant argued that two substantive issues emerge. The first is whether or not claims had been made as to (a) whether it was a condition of the grant of bail that he report daily to the CID; and (b) whether the consequence of the bail and the court document was that there were ongoing investigations into the appellant such that he was likely to be the subject of adverse attention from the authorities upon his return to Sri Lanka. The appellant accepted that the Tribunal addressed (a) in the course of rejecting his evidence that there was not any reporting condition attached to the terms of his bail. This was a credit finding that is not the subject of challenge. However, he submitted that the Tribunal and the primary judge failed to appreciate that his claims included the integers identified in (b), and that by not appreciating that, they also failed to take these matters into consideration in determining that he was likely to suffer harm when he returned to Sri Lanka.

31    The appellant submits that the Tribunal wrongly equated the grant of bail by the Court in Colombo with his exoneration from the allegations of support for the LTTE. He submits that the Tribunal’s finding that the appellant was “cleared” of any links to the LTTE was inconsistent with the appellant’s evidence that he was released on bail and inconsistent with the court document that referred only to investigations “carried out so far”. The appellant submits that the essence of bail is that the bailed party will return to court when required. The appellant has breached his bail and is at risk on return to Sri Lanka for that reason. Accordingly, the risk of harm to the appellant is not only as a failed asylum seeker but further as someone who had breached bail on terrorism charges (LTTE related). The appellant alleges that neither the Tribunal nor the primary judge considered these claims. The appellant submits that, in effect, the Tribunal failed to come to grips with the submission that he was not exonerated by the Court and that as a result it had failed to address a central aspect of his claims.

32    The Minister contends first that the appellant did not make any claims to the effect of (b). The Minister next contends that when paragraph [34] of the Tribunal’s decision is read properly, it is apparent that each of claims (a) and (b) is in any event addressed and dismissed for reasons that are unimpeachable.

4.2    Consideration

33    This appeal focusses on two questions. The first concerns the identity of the claims made. The second concerns whether such claims were addressed by the Tribunal.

34    In my view, the materials before the Tribunal made clear that the further claim (b) was made by the appellant. In a submission made to the delegate on 24 September 2013 the appellant’s solicitor referred to a concern expressed by the delegate that the court had “ordered that the applicant was not engaged in terrorism activities due to lack of evidence” and submitted that the evidence established that “the police requested that the applicant be released on appropriate bail, which indicates their intention to continue investigation”. The submission went on to observe that “…there is no clear indication in the evidence that the [appellant] was acquitted from suspicion.” These submissions raise the issue of whether the appellant’s release on bail by the Court meant that his release was conditional and whether he was likely to be subjected to ongoing investigation. In my view these issues arose squarely on the material before the Tribunal.

35    The primary judge rejected the appellant’s submission that he had made this claim. The primary judge found that the only condition of bail adverted to by the appellant in his evidence and submissions was that he was required to report to the CID daily. Her Honour found that once the Tribunal had rejected the evidence of the appellant that daily reporting was a requirement at all, it was open to it to find that there were no conditions on his release on bail, with the consequence that the appellant would have no profile which would attract the adverse interest of the Sri Lankan authorities. In this context the primary judge found that the passage of the Tribunal’s reasons at paragraph [34] stating that it was not satisfied that the appellant was required to report to the CID disposed of the appellant’s claims concerning the grant of bail. For the reasons stated, I respectfully disagree with the learned primary judge.

36    Despite making this finding, the primary judge then went on to find that the Tribunal had dealt with the appellant’s submissions that investigations by the CID were continuing after his release on bail by reason of the same credit findings that formed the basis for rejecting his claim as to the conditions attached to his bail. Furthermore, the primary judge went on to find that the Tribunal had a proper basis upon which to find that the appellant had been cleared of any links with the LTTE. First, on the basis of the content of the court document, where the police officer stated that investigations so far had not revealed any information linking the suspects to terrorist activities or other crimes and secondly, because the appellant himself had said in his statutory declaration that “the Court found that we had no connection with [the] LTTE and they released us”.

37    As I have mentioned, in my view it is clear enough that claim (b) was in fact advanced by the appellant before the Tribunal. This was made in a written submission to the delegate, which was also before the Tribunal. The fact that the content of the appellant’s statutory declaration tended to contradict the claim does not diminish the fact that it was made, although plainly enough it may have a bearing on whether it would be upheld. However, for the reasons set out below, I reject the appellant’s submission that the Tribunal did not address the claim.

38    In paragraph [34] the Tribunal relevantly made the following finding (emphasis added):

For the reasons set out above, the Tribunal is not satisfied that the applicant was required to report to the CID or that he was of adverse interest to the authorities after this. Therefore, the Tribunal finds that the applicant was cleared of any links to the LTTE, that he was not the subject of any adverse attention from the Sri Lankan authorities from November 2008 until his departure in 2011 and that he does not hold a pro-LTTE profile in Sri Lanka

39    The “reasons set out above” draw attention to each of the 8 bases upon which the evidence of the appellant was called into question and rejected. In the second of these, the Tribunal observed that the appellant was able to depart and voluntarily return to Sri Lanka without difficulty and that this is not consistent with his claim to be of an ongoing adverse interest to the authorities. In the sixth, it observes that the appellant travelled through checkpoints to visit family on 4 or 5 occasions and attended a government passport office to obtain a passport. In a later part of paragraph [34] of the Tribunal’s decision, the Tribunal refers to the appellant’s own statement, which as I have noted tends to suggest that, at least at the time that he gave it, the applicant did not consider that the Court in Sri Lanka regarded that he was of continuing interest.

40    The finding that the appellant was “cleared of” links to the LTTE at paragraph [34] of the Tribunal’s decision is not to be understood in the narrow context of the court document alone, which plainly does not exonerate the appellant, but in the broader context of the Tribunal considering whether the appellant’s detention once in 2008 indicates that he would again be implicated with a pro-LTTE profile if he was to return. The passage from paragraph [34] of the Tribunal’s decision quoted above indicates that not only did the Tribunal consider that question, but that it also rejected the claim in terms because it found that the appellant was not the subject of any adverse attention from the time of his release in November 2008 until 2011.

41    It is to be noted that the appellant does not in this appeal contend that it was legally unreasonable or illogical on the facts to reach this conclusion. Plainly enough, the court document indicates that he was of ongoing interest at the time of his release in November 2008. Read literally, this aspect of the Tribunal’s reasoning is unfortunate. However, I am mindful that it is not appropriate to pick over the Tribunal’s decision with a fine tooth comb finely attuned to error. The import of the Tribunal’s finding is that the appellant was not of interest following his release. The finding that the appellant was cleared of any links to the LTTE and that he was not the subject of any adverse attention from the Sri Lankan authorities from November 2008 addresses and rejects the substance of claim (b) that the consequence of the bail and the court document was that he was likely to be subject to ongoing investigations.

42    Accordingly, in my view although the primary judge erred in finding that claim (b) (that it was a condition of the grant of bail that he report daily) was not made, in my view she was otherwise correct to find no jurisdictional error on the part of the Tribunal.

5.    DISPOSITION

43    I grant leave to the appellant to rely on the ground of appeal set out in paragraph 19 of his written submissions. However, the appeal is dismissed and the appellant must pay the Minister’s costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.

Associate:

Dated:    4 April 2018