FEDERAL COURT OF AUSTRALIA

BFG15 v Minister for Immigration and Border Protection [2018] FCA 733

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed 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    The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection (class XA) visa under the Migration Act 1958 (Cth).

2    The appellant is a 27 year old citizen of Sri Lanka, of Hindu faith and Tamil ethnicity. He arrived in Australia in July 2012 as an irregular maritime arrival and was subsequently granted a bridging visa under the Act.

3    On 6 November 2012, he applied for a protection (class XA) visa. In his accompanying statement of claims, the appellant claimed he feared returning to Sri Lanka on the basis that the Sri Lankan army suspected he was a member of the Liberation Tigers of Tamil Eelam (LTTE). He also claimed to fear harm based on his having departed Sri Lanka illegally.

4    He stated that, while in Sri Lanka, he was regularly questioned and beaten in relation to his involvement with the LTTE and outlined a number of specific incidents when this occurred. In particular, the appellant claimed that the Sri Lankan army asked him to report to its headquarters in June 2012, and that this was very frightening as many people were kept at the headquarters for lengthy periods and beaten, or never returned. It was following this summons that the appellant said he decided to flee Sri Lanka.

5    The appellant claimed he feared the Sri Lankan army would detain, torture or kill him if he were to return to Sri Lanka and, accordingly, he could not gain protection from the authorities or relocate to another area of Sri Lanka in order to be safe.

6    His application was accompanied by a letter from his migration agent which contained supporting country information.

7    On 21 March 2014, the delegate refused the appellant’s protection visa application.

8    The appellant lodged an application for review of the delegate’s decision in the Tribunal on 26 March 2014. He appeared before the Tribunal on 6 March 2015. The Tribunal affirmed the delegate’s decision not to grant the protection visa on 12 June 2015.

9    On 30 June 2015, the appellant applied to the Circuit Court for judicial review of the Tribunal’s decision. A judge of the Circuit Court dismissed the appellant’s application on 13 December 2017, finding no jurisdictional error in the Tribunal’s decision-making.

10    The appellant now appeals from the judge’s decision on the following ground:

Grounds of appeal

The Federal Circuit court failed to find, in respect of the [Tribunal] that the [Tribunal] declined its jurisdiction to me on the basis of ground stated in my Federal Circuit Court Application.

My ground: The [Tribunal] took into account an irrelevant consideration.

11    To understand this ground it is necessary to understand how the appellant’s protection visa application was dealt with by the delegate, the Tribunal, and the judge.

DELEGATE’S DECISION

12    The appellant attended an interview before the delegate on 10 May 2013 as part of his protection visa application and was assisted by a Tamil interpreter.

13    The delegate accepted that the appellant was of Tamil ethnicity and his claim of being moved to Arunasalam camp in 2009, which was run by the Sri Lankan army during the war. Further, the delegate accepted that the living conditions at the camp may have been very difficult for the appellant and many other Tamils.

14    In regard to the appellant’s claims in relation to the Sri Lankan army, the delegate considered it possible that he was questioned because he was from the north, however did not accept he was repeatedly harassed or subjected to ongoing questions on several occasions between 2009 and 2012 due to the authorities suspecting he was training with the LTTE. This was because the delegate considered that if the authorities held this suspicion, “they would simply have arrested and detained him, as they did to thousands of other young Tamil men in Sri Lanka during this time”.

15    The delegate made reference to country information which indicated that those with suspected links to the LTTE had been arrested, detained and beaten by the police and other authorities under the Prevention of Terrorism (Temporary Provisions) Act 1978 (Sri Lanka). However, the delegate found, the appellant was never arrested or charged with any offences and did not have a criminal record.

16    Further, the delegate was not satisfied the appellant was asked to report to the Sri Lankan army headquarters, as he claimed, or that such an event motivated him to depart Sri Lanka. The delegate stated that the appellant had not provided any evidence to substantiate his claim in this respect and found his account of the incident to be “brief, lacking in detail and unconvincing”.

17    The delegate made reference to country information including the United Nations High Commissioner for Refugees Eligibility Guidelines for assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, published 21 December 2012, and concluded that the appellant was not a person of adverse interest to any Sri Lankan authority because he was suspected of training with the LTTE. The delegate also noted the appellant’s lack of political engagement.

18    Overall, the delegate was not satisfied the appellant had a well-founded fear of being persecuted based on his Tamil race or his imputed political opinion of being opposed to the Sri Lankan army and holding links to the LTTE.

19    In addition, the delegate did not consider the appellant had a well-founded fear of persecution as a result of being a member of the particular social group described as “Tamil male claiming asylum in western country” because, while she accepted the appellant may be questioned by the Sri Lankan authorities upon his return, country information stated that the situation in Sri Lanka had improved and that “it is safe to return rejected asylum seekers from the north and west of the country”.

20    The delegate was not satisfied, therefore, that the appellant met the criteria for a protection visa under s 36(2)(a) of the Act.

21    She then assessed whether the appellant met the criteria for complementary protection under s 36(2)(aa). The delegate was similarly not satisfied the appellant had a real chance of being subjected to significant harm, largely for the same reasons referred to in her assessment pursuant to s 32(a).

TRIBUNAL’S DECISION

22    On 26 March 2014, the appellant applied for review in the Tribunal and attended a hearing on 6 March 2015, with the assistance of his migration agent and a Tamil interpreter.

23    The appellant provided the Tribunal with post-hearing submissions on 14 April 2015. These submissions contained clarifications including with regard to information the appellant provided at the hearing concerning his brother being taken from the appellant’s wife’s house in February 2015, and the family having been unable to locate him since. The submissions also enclosed substantial country information which referred to torture and human rights abuses; the situation for returnees in Sri Lanka; relocation; and restriction of information and military presence in Sri Lanka.

24    The Tribunal affirmed the delegate’s refusal to grant the appellant a protection visa in a decision dated 12 June 2015.

25    At the outset of its decision, the Tribunal stated that the appellant’s account of the difficulties he faced after returning home from the camp differed between his entry interview, his statutory declaration, those made to the delegate, and that given to the Tribunal.

26    The Tribunal’s decision referred in detail to the hearing and the process of questioning which took place. It also made reference to a range of country information.

27    In considering the new claim concerning the appellant’s brother, the Tribunal was not satisfied that if his brother had disappeared that there was a link to the appellant. This was because no evidence had been provided that the authorities had been looking for him, and because of his lack of profile.

28    The Tribunal found the appellant did not fall into any categories that would mean his race and ethnicity would cause him to suffer serious harm or significant discrimination in the reasonably foreseeable future. Further, based on a finding that the appellant was not suspected of being active in the LTTE, the Tribunal was not satisfied he held a well-founded fear of harm based on his membership of a particular social group.

29    In regard to his alleged political profile, the Tribunal held the appellant “significantly embellished” his account of the interest in him of the Sri Lankan army and the Central Investigation Department. The Tribunal stated at [180]:

I find his explanations unconvincing and, when considered with the independent material that people who were suspected of LTTE links were routinely detained and either sent to rehabilitation centres or worse I find that he was not of any concern to them.

30    In respect of the appellant’s claims in relation to returning as a failed asylum seeker, the Tribunal found that, although he came from an area of Sri Lanka directly affected by the LTTE conflict, he had no direct history of being of concern to the Sri Lankan authorities and had no profile other than having departed the country illegally. The Tribunal stated:

207.     That being the case, I find that the applicant will be interviewed by the three government agencies to determine his identity and any information relevant to security.

208.    I accept that he will face charges related to illegal departure and have to appear before a magistrate.

209.    I have considered the possibility that the law is not a law of general application and that it targets illegal departees or failed asylum seekers.

210.    Although the law had not been implemented before November 2012 at a time when a number of illegal departees were returned, the nature of the fines imposed on every case, though varied, do not lead to a finding that the law is discriminatory or disproportionately imposed,

31    The Tribunal found that the appellant did not face serious harm in Sri Lanka, and for the same reasons, found he was also not of risk of significant harm. As a result, the Tribunal was not of the opinion that the appellant was a person in respect of whom Australia had protection obligations as a refugee under s 36(2)(a) or under the alternative criterion provided by s 36(2)(aa).

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

32    The appellant filed his application for judicial review in the Circuit Court on 30 June 2016, listing a single ground of review:

1.    The Tribunal erred by making irrelevant considerations in consideration of the complementary protection provisions

Particulars

a.    At paragraph 222 the Tribunal made an irrelevant consideration in applying the refugee convention criterion of law of general application; and

b.    At paragraph 225 the Tribunal made an irrelevant consideration in finding that the situation of prisons in Sri Lankan and many other countries in that region will be less sanitary, more crowded and with less services than would be available in Australia.

33    The judge dismissed the application, finding no jurisdictional error. His Honour first set out the relevant paragraphs of the Tribunal’s decision record, namely:

222.    As discussed above I find that the applicant will face checks and will appear before a magistrate charged with having departed the country illegally in breach of a law of general application.

223.    The process of appearing at the magistrate’s court may result in a period of detention of up to two weeks.

224.    The situation of prisons in Sri Lanka and many other countries in that region will be less sanitary, more crowded and with less services than would be available in Australia.

225.    However, the evidence before me leads me to conclude that any hardship for that brief period is not as a result of intent or discrimination.

34    At [18] of his decision, the judge stated that his understanding that the appellant’s argument was that the terms “law of general application” and “discrimination” were relevant to the s 36(2)(a) criterion of the Act, and not to the complementary protection criterion as outlined in s 36(2)(aa) of the Act. The judge agreed with the Minister’s submission that, even if these concepts were normally associated with s 36(2)(a), there was no legal error made out in this respect.

35    His Honour found that the Tribunal correctly set out the complementary protection criterion and made specific reference to the definition of “significant harm” as set out in s 36(2A) of the Act, namely:

(2A)    A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

36    The judge stated in this regard, at [23]-[24], of his reasons:

23.     From [221] – [225] (at CB 171), which contains the impugned paragraphs of the Tribunal’s decision record, the Tribunal referred to its findings of fact made earlier in its decision record. On a fair reading, what follows at [226]-[227] (at CB 171) of its decision record, are the Tribunal’s relevant findings as against various elements of the definition of “significant harm” as derived from s.36(2A) of the Act (and as reproduced at [227] at CB 171).

24.     Therefore, the Tribunal’s reference to a “law of general application” as it appears at [222] (at CB 171) of its decision record, when read fairly, is a part of the description of the Tribunal’s previous findings. For the purposes of s.36(2)(aa) of the Act, what the Tribunal applied to that criterion, was its earlier expressed factual finding that on return to Sri Lanka, the applicant would not face a real risk of significant harm.

37    The judge found that, at [222], the Tribunal was referring to its analysis in relation to the appellant’s claim that he would suffer harm on return to Sri Lanka as a failed asylum seeker because he had breached Sri Lanka’s immigration laws and on the basis of his ethnicity. His Honour considered that the Tribunal was seeking to address the appellant’s claim relating to his departure and his fears on return.

38    In regard to the reference to “discrimination” at [225], the judge stated this needed to be understood in the context of the Tribunal’s decision, and the appellant’s claim that he would suffer harm on return to Sri Lanka as a failed asylum seeker of Tamil ethnicity who left the country in breach of immigration laws. He found that, in this light, “the Tribunal reasoned that any hardship that the applicant would suffer was not, amongst other things, as a result of ‘discrimination’ because he was a Tamil”.

39    The judge considered that the Tribunal was entitled to rely on factual findings expressed earlier in its decision and later summarised in the paragraphs referred to by the appellant, in assessing “significant harm”, citing SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774; SZSHK v Minister for Immigration and Border Protection and Another (2013) 138 ALD 26; [2013] FCAFC 125.

40    Finally, his Honour held that it was appropriate for the Tribunal to consider both the condition of detention in Sri Lanka and whether the confinement in prison was as a “result of intent” on the part of the Sri Lankan authorities. He concluded that the Tribunal’s analysis did not reveal jurisdictional error, citing SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34.

APPEAL TO THIS COURT

41    In his notice of appeal in this Court the appellant effectively repeats the ground rejected in the Circuit Court, in those terms:

Grounds of appeal

The Federal Circuit court failed to find, in respect of the [Tribunal] that the [Tribunal] declined its jurisdiction to me on the basis of ground stated in my Federal Circuit Court Application.

My ground: The [Tribunal] took into account an irrelevant consideration.

42    The appellant makes reference to not having legal representation and says he “will provide further particulars of my grounds and /or other grounds and particulars after I have obtained legal advice”. (At the time of hearing of the appeal he has not added to the grounds or particulars.)

43    The appellant also filed an affidavit stating:

1.    I am the Applicant.

2.    I have no lawyer to represent me in this Court.

3.    My Federal Circuit Court Application was refused and I enclose herewith the Court Order.

4.    I do not agree with the [Tribunal’s] and the Federal Circuit Court’s decision.

5.    I rely on facts and grounds of review stated in my Federal Circuit Court Application and in the Form 121 to leave to appeal.

6.    I still fear persecution in my home country

44    On 15 May 2018, the Minister filed an outline of written submissions, contending that the appellant’s grounds of appeal were substantively identical to his grounds before the Circuit Court and that he had not identified any jurisdictional error in the judge’s reasoning.

45    Noting that the appellant has not filed any written submissions on his appeal, the Minister submits that in the absence of any basis upon which it is asserted that the judge erred in his consideration of the grounds of review, the Minister has “no case to meet”.

46    At the hearing, the appellant made oral submissions to the following effect. He said, having regard to the submissions of the Minister which had been read to him by an interpreter before the appeal hearing commenced, that he was scared to return to Sri Lanka; and that he was confirmed in that state of mind because his brother had been taken. When asked whether there was any particular error made by the judge below that he wanted to address, he indicated that his “problem” had not been taken into account.

47    The Minister, by his lawyer, in oral submissions submitted that, to the extent the appellant sought to reformulate the ground agitated in the Circuit Court, the Minister embraced the succinct reasons of the judge for dismissing the judicial review application that appeared at [20] and following of the judge’s reasons.

CONSIDERATION

48    As noted above, the appellant has advanced, as his sole ground of appeal, the ground that the judge in the Circuit Court erred in law in failing to accept the ground of his application for judicial review in the Circuit Court, to the effect that the Tribunal had taken into account irrelevant considerations in considering the claim for complementary protection.

49    I have set out above the reasoning of the judge in the Circuit Court for dismissing the judicial review application and I do not repeat it here.

50    It is plain that the judge was right to observe that the reference in [222] of the Tribunal’s decision record, to breach of a “law of general application” was made by the Tribunal in the course of dealing with the appellant’s claims concerning the circumstances of his departure from, and the fears he had on returning to, Sri Lanka. In that context, the reference did not constitute an irrelevant consideration but an appropriate and proper part of the Tribunal’s consideration of the claim for complementary protection.

51    Similarly, the Tribunal’s reference, at [225] of its decision record, to the situation in prisons in Sri Lanka was also an appropriate and proper consideration for the Tribunal in dealing with the appellant’s claims that he would suffer on return to Sri Lanka as a failed asylum seeker and would suffer “discrimination” for being a Tamil.

52    As the judge found, having dealt with the factual circumstances and claims made by the appellant earlier in its decision record, the Tribunal was entitled to rely on those findings when dealing with the question of “significant harm” and complementary protection later in the decision record.

53    No irrelevant matters were the subject of consideration by the judge. To the contrary, the judge took account of all matters that had a bearing on the complementary protection claims.

54    I therefore find that the judge in the Circuit Court did not err as submitted by the appellant.

55    For these reasons, this appeal should be dismissed.

CONCLUSIONS AND ORDERS

56    The Court orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs, to be assessed if not agreed.

Associate:

Dated:    23 May 2018