FEDERAL COURT OF AUSTRALIA

BFB17 v Minister for Immigration and Border Protection [2018] FCA 724

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or as assessed.

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

REASONS FOR JUDGMENT

(revised from transcript)

STEWARD J:

1    The appellant is a Tamil man from Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 21 October 2012. On 6 January 2016, the appellant was invited by the first respondent to apply for a Temporary Protection (subclass 785) visa or Safe Haven Enterprise (subclass 790) visa. The appellant sought a Safe Haven Enterprise visa by an application lodged on 7 April 2016. On 20 December 2016, a delegate of the first respondent decided not to grant the visa. His application was then referred to the Immigration Assessment Authority (the “Authority”), which affirmed the delegate’s decision on 17 February 2017. On 22 March 2017, the appellant sought judicial review of this decision in the Federal Circuit Court. That application was dismissed by the primary judge on 2 November 2017. The appellant now appeals that decision to this Court.

THE DECISION OF THE AUTHORITY

2    At par [5] of the decision of the Authority, the appellant’s claims for protection were summarised in these terms.

•    He is a Hindu Tamil born on 3 January 1985 in Batticaloa District in the Eastern Province of Sri Lanka. He completed schooling at the local public school to Year Six level.

•    In about 1998 he started learning a trade in his older brother’s jewellery shop in Batticaloa. During this time he earned a wage.

•    In 2007 he was displaced due to the civil war and moved to Onthachimadam, Batticaloa. After three months he returned to his home village.

•    Following the end of the war in 2009, the army occupied his village and frequently targeted Tamils for questioning about involvement with the [Liberation Tigers of Tamil Eelam (the “LTTE”)]. The applicant was taken for questioning by army officers many times. He was interrogated and beaten but not detained overnight or formally charged.

•    In February 2009 the applicant’s brother disappeared two days after returning to Sri Lanka from Malaysia.

•    At the beginning of 2010 he left Sri Lanka on a work visa and travelled to Doha, Qatar where he worked at a tile and marble business until February 2012. This work caused an injury to his back and he continues to suffer back pain. On return to Sri Lanka, he resumed residence in his home village.

•    In 2012, he was a member of the Gold City Sports Club which is a club located in his village. Two candidates for the [Tamil National Alliance (the “TNA”)] party in the 2012 Council elections approached the club seeking the support and assistance of members in return for promises to develop the club and the village if elected.

•    The applicant agreed to support and vote for the candidates. He assisted them to hold a meeting at the club to speak to other members by making arrangements and drafting and distributing letters of invitation to club members to attend the meeting.

•    The meeting was held on 5 September 2012. It was attended by approximately 60 people, comprising members and some people from the village.

•    At about 6pm that day, the applicant was contacted by the Club President and asked to come to his house as some men in a white van had arrived and wanted to conduct an investigation in to the meeting. Some of the men were dressed in uniforms like police uniforms.

•    On arrival, he and 11 other members including the Club President, were placed in a white van and driven to an unknown location for questioning. He and the President admitted responsibility for arranging the meeting and were separated from the rest of the group. He was interrogated, beaten and threatened by members of the [Special Task Force].

•    At about midnight the group was driven back to the village and released. They were threatened they would be killed if they reported the incident to the police.

•    The applicant did not return home but went to hide with a relative in another village. While in hiding his mother told him the authorities had come looking for him at his brother’s shop and at his home. A few weeks later he departed Sri Lanka.

•    While in Australia, the applicant attended a Tamil Martyrs’ Day celebration held in November 2015 at Silverwater, New South Wales. His picture was taken at the event. About 10 days later members of the Criminal investigation Division (CID) went to his home and questioned his mother about the photograph and his attendance at the event. His younger brother was at the house at the time and CID questioned him and detained him for further investigation. His brother was charged and brought before court where he was bailed.

3    The Authority accepted some, but not all, of these claims. For example, it accepted:

(1)    the appellant’s account of his experience growing up in an area controlled by the Liberation Tigers of Tamil Eelam (the “LTTE”) during the Sri Lankan war and the difficulties faced by his family;

(2)    that in the time leading up to the end of the war, and throughout 2009, the appellant was subject to frequent harassment, detention and interrogation by army officers stationed nearby about his suspected involvement in LTTE activities;

(3)    that, as a Tamil, the appellant had concerns about mistreatment from government and security personnel;

(4)    that the appellant was involved with the Tamil National Alliance (the “TNA”) to the degree he had claimed;

(5)    that, as a result of a meeting at the Gold City Sports Club, the appellant was taken by police and paramilitary groups to an unknown location where he was interrogated and mistreated for a period of about six hours. Following his release, the appellant was threatened with being killed if he reported this incident to the police;

(6)    that the appellant had attended a Tamil Martyrs’ Day commemoration event in November 2015 and that his photo was taken whilst he was there; and

(7)    finally, that the appellant had departed Sri Lanka illegally and that he would return to Sri Lanka as a returned asylum seeker and that he was likely to be identified as such.

However, the Authority did not accept all of the appellant’s claims based on the evidence before it. For example, it determined that the Sri Lankan authorities in 2009 suspected that the appellant was involved with the LTTE, but considered him to be a person with a low level connection rather than a person who held a position of authority or provided significant support to the LTTE. It further determined that there was no information before it to indicate that Sri Lankan authorities imputed the appellant with involvement with the LTTE due to the circumstances of his brother, who had disappeared, or because of any other family member.

4    Whilst the Authority had accepted the appellant’s concerns about mistreatment, it had determined nonetheless that the situation in Sri Lanka had improved since 2012. It further determined that, because the appellant did not have a profile of imputed LTTE association and/or TNA support, this would not give rise now to a real chance of harm. The Authority characterised the nature of the appellant’s support for the TNA as being administrative and limited in scope. In relation to the Tamil Martyrs’ Day commemoration, the Authority did not accept that the appellant’s mother was shown a copy of the photos and was questioned by Criminal Investigation Division (“CID”) officers about the appellant’s location and activities. The Authority accordingly concluded at par [32] as follows:

On the basis [of] the country information, that the applicant’s profile as a TNA supporter or links to the LTTE are assessed to be low, the nature of his participation at the Martyrs’ Day Commemoration event and the absence of enquiries by authorities, I am satisfied that the applicant would not face a real chance of serious harm on return to Sri Lanka due to imputed LTTE association or as a TNA supporter.

5    The Authority also considered the risk of harm if the appellant were to return to Sri Lanka, given that he had departed from that country illegally. Based on country information, the Authority was satisfied that the appellant would not face a real chance of serious harm on the basis that he was a returning asylum seeker. For similar reasons, the Authority concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk that the appellant will suffer significant harm for the purposes of the complementary protection provisions of the Migration Act 1958 (Cth).

THE DECISION OF THE FEDERAL CIRCUIT COURT

6    The appellant sought judicial review of the Authority’s decision in the Federal Circuit Court. The ground relied upon before the primary judge, which was said to identify jurisdictional error, was set out at par [20] of the reasons below as follows:

The country information before the Immigration Assessment Authority (“the IAA”) indicated that up until a period following the end of the civil war in 2009 the Sri Lankan authorities harassed and mistreated the Tamil population. The country information also indicated that, more recently, the situation for Tamils in Sri Lanka has improved. However, the fact that the situation has improved does not, without more, mean that Tamils do not face a real chance of persecution. The IAA reasoned that, because the security situation for Tamils in Sri Lanka has improved, the applicant did not face a real chance of serious harm on the basis of his Tamil ethnicity. This reasoning process involves an error in applying the real chance test, which is a jurisdictional error.

The appellant, who was represented by counsel in the Federal Circuit Court, submitted that the error below had been that the Authority had, through its reliance on country information, nonetheless failed to properly apply the “real chance” test.

7    That submission was rejected by the primary judge at par [22] of his Honour’s judgment, as follows:

The Authority’s reasons are not to be read with a keen eye for error. It was appropriate for the Authority to identify and open to the Authority to give such weight as it saw fit to the country information. The adverse finding by the Authority in respect of the absence of a real chance of serious harm was identified as taking into account not only the country information but the personal circumstances of the applicant including his family connections, previous questioning by authorities in 2009 and also the applicant’s profile. The reference to the country information does not identify a basis upon which the Court should infer that the Authority failed to apply the real chance test in the law that was correctly identified by the Authority in its reasons. No jurisdictional error as alleged in ground 1 of the amended application is made out.

APPEAL

8    On appeal to this Court, the appellant, who was not represented on this occasion, relied on five grounds of appeal, each of which, I have carefully reviewed. The first was in substantially the same terms as that relied upon before the primary judge. The second ground was that the “real chance” test had not been correctly applied because the Authority had not properly considered the situation for the appellant into the reasonably foreseeable future if he were to return to Sri Lanka. The third ground was that the Authority had erred in not considering the possibility that certain post events had occurred. For this purpose, the appellant invoked a decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. The fourth ground was that the Authority had failed to deal with “accepted facts” and to consider whether these had enhanced the risk to the appellant. The fifth ground was that the Authority’s finding that, by virtue of the appellant’s departure from Sri Lanka, he would not be of interest to the authorities and paramilitaries was irrational and/or illogical. I shall address each ground as follows.

9    In my view, ground one, which was also relied upon below, represents an impermissible review of the merits of the Authority’s reliance on country information to assess risk. The conclusions reached by the Authority on the issue of future risk were open to it, and it was a matter for it to decide how the country information was to apply to the particular facts before it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. In my view, the Authority reached its conclusion after detailed consultation of the available country information and also having regard to the appellant’s personal circumstances. Ground one is therefore rejected.

10    Ground two is an iteration of the complaint the appellant makes about the “real chance test” and again, in substance, seeks to review the merits of the Authority’s conclusion. Ground two is rejected.

11    In relation to ground three, in Rajalingam, Sackville J at par [67] said:

In general, however, the question of whether the [Refugee Review Tribunal (the “RRT”)] should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo [(1997) 191 CLR 559)] claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang [(1996) 185 CLR 259] at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

In my view, a fair reading of the Authority’s findings in relation to the issue as to whether the CID had questioned the appellant’s mother about a photograph said to have been taken of him attending a Martyrs’ Day celebration shows that the Authority had no “real doubt”, in the sense that that phrase was used by Sackville J, about this issue. As the Authority said at par [29]:

I do not accept that the applicant’s mother was shown a copy of the photos and questioned by CID officers about the applicant’s location and activities following his attendance at the Martyrs’ Day event. The applicant at interview could not explain how the photographs could have come into the CID’s possession and the country information does not support that person with his level of involvement would attract ongoing interest. Having regard to my assessment that the nature of his support of the TNA party was not significant or ongoing, he did not hold a prominent profile within the party, and his involvement in the Martyrs’ Day activities was nothing more than as an attendee, I have considerable doubt that he would attract this level of attention from the authorities. Further, I find the applicant’s suggestion that the CID attended on his mother on the one occasion in 2015 only, and with no further contact in more than 12 months, to be implausible and inconsistent with his claim that CID are after him.

12    Ground four, in my view, has no merit. The “accepted facts” were never identified by the appellant.

13    Ground five contends that the Authority’s findings were irrational and/or illogical. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ said at par [131]:

But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

The conclusion reached here by the Authority concerning the factual issue as to whether the appellant’s departure from Sri Lanka would be of interest to the authorities and paramilitaries was open to it on the evidence before it. That conclusion fell far short of being illogical or irrational in the sense described by Crennan and Bell JJ in the SZMDS decision. In my opinion, the appellant was again here in substance seeking to have this factual issue reconsidered on the merits. This ground accordingly is rejected.

14    Before me, the appellant sought more time to prepare his case and to find legal representation. It is, of course, profoundly regrettable that the appellant was not represented by counsel. However, he has no right to legal representation (see Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 at [27]), and, in my view, he was given a sufficiently reasonable opportunity to obtain legal assistance.

15    For these reasons, the order of the Court is that the appeal is dismissed, with costs as agreed or as assessed.

Associate:

Dated:    24 May 2018