FEDERAL COURT OF AUSTRALIA

BVF16 v Minister for Immigration and Border Protection [2018] FCA 736

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent of and incidental to the appeal.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal from the judgment and orders of the Federal Circuit Court of Australia in BVF16 v The Minister for Immigration and Anor [2017] FCCA 2536.

2    On 5 December 2017, the Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) which affirmed a decision of the delegate of the Minister to refuse the appellant a Protection (Class XA) visa.

3    The only ground of appeal recited in the notice of appeal is this:

1.    The judge in the FCC his Honour committed legal errors when dismissing proceedings. The judge failed to consider all of the grounds raised in a proper and reasonable manner.

4    That ground of appeal is entirely devoid of any content. It contains a general contention that the primary judge fell into legal error when making the order to dismiss the appellant’s application for judicial review. The content or character of the legal error is not identified in any way at all. The second element to the ground of appeal is that the primary judge is said to have failed to consider, in a proper and reasonable manner, the grounds relied upon by the appellant before the primary judge. Again, the appellant has failed to identify, even in a passing manner, the basis for the contention that the primary judge failed to consider properly and reasonably the grounds relied upon in seeking judicial review of the Tribunal’s decision.

5    As to the grounds relied upon by the appellant before the primary judge, the primary judge notes in the reasons for judgment that the appellant relied upon four grounds before the primary judge but grounds 3 and 4 were not pressed. Accordingly, the contention is, necessarily, that grounds 1 and 2 were not properly and reasonably addressed.

6    Ground 2 before the primary judge was in these terms:

Ground 2

The Tribunal fell into error in failing to consider integers of the applicant’s claim.

PARTICULARS

(i)    The Applicant claimed the [that] he could not move elsewhere in Sri Lanka to escape the risk of harm.

[ii]    The Tribunal did not consider that the applicant could move/relocate.

[iii]    The Tribunal did not consider principles such as established in SZATV v MIAC 92007.

[iv]    The Tribunal accepted certain family links relevant to the applicant (see for example paragraph 40) but did not consider those relationships in the light of risk factors set out in the latest UNHCR country information.

[emphasis added]

7    In the subparagraphs above, I have placed a number of the subparagraphs in square brackets because the actual numbering is (i), (iii), (iv) and (v).

8    The reference to SZATV v MIAC is a reference to SZATV v Minister for Immigration (2007) 233 CLR 18. At [37], the primary judge observes that ground 2 contended for the proposition that the Tribunal had erred by failing to consider the integers of the appellant’s claim. The primary judge noted that, in particular, the appellant contended that the Tribunal had failed to consider his claim that he could not relocate elsewhere to escape the risk of harm and that the Tribunal had failed to consider the principles in SZATV v Minister for Immigration. The appellant also contended before the primary judge that although the Tribunal had accepted that there were certain family links relevant to the appellant in the circumstances of his claim, the Tribunal failed to consider those relationships in light of risk factors in the latest UNHCR country information.

9    The primary judge concluded at [38] that the complaints made by ground 2 had no proper basis. That was said to follow because the Tribunal was not satisfied that the appellant would face harm upon return to Sri Lanka and thus it was not required to consider the issue of relocation. Accordingly, the question of relocation simply did not arise for consideration by the Tribunal: SZCJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 48 at [9].

10    The primary judge made these further observations:

39.    Further, the Tribunal expressly considered the applicant’s claim to fear harm upon return to Sri Lanka as a result of his family’s LTTE connections [see [38] to [51] of the Tribunal’s reasons]. The Tribunal considered the applicant’s evidence regarding his father and siblings and, on the basis of that evidence, found that he had not suffered any harm from the authorities in the past because of his relationship with his father or siblings [see the Tribunal’s reasons at [45]]. While the applicant’s older brothers were rounded up by the authorities when he was at school, the applicant was small and “knew that he would not be taken” [see the Tribunal’s reasons at [40]]. The applicant’s evidence did not reveal that his siblings have since had issues with the authorities [see the Tribunal’s reasons at [41] to [43]].

40.    The Tribunal went on to consider the applicant’s relationship with various other relatives and whether that would lead to a real chance of harm from the authorities [see the Tribunal’s reasons at [46]]. Although the applicant claimed that his cousin “UT” was once a “Black Tiger”, he conceded that his cousin had not caused any problems for anyone in his family [see the Tribunal’s reasons at [47]]. The Tribunal found the applicant’s evidence that at the time of his police report, a Tamil policeman told him to “go overseas”, was “confusing and unpersuasive” and reinforced the Tribunal’s view that the principal reason the applicant left Sri Lanka in 2007 was his fear of the LTTE and not of the authorities [see the Tribunal’s reasons at [48]].

41.    The Tribunal specifically asked the applicant whether there were any other relationships which would cause him problems (noting that he mentioned various relatives in a statement dated 4 May 2015) but the applicant said he did not know and that he relied on information from his mother [see the Tribunal’s reasons at [49] and [50]]. On the basis of the above history, the Tribunal did not accept that the applicant’s familial links had caused him to suffer any harm in the past or that there was a real chance that they would cause him to suffer serious or significant harm in the future [see the Tribunal’s reasons at [51]]. I accept that the Tribunal comprehensively considered whether the applicant would face harm from the authorities upon return to Sri Lanka on the basis of his family links and rejected that claim entirely on the basis of the applicant’s own evidence. These findings were open to the Tribunal to make on the material before it. There was no obligation on the Tribunal to consider “the latest UNHCR country information” in these circumstances.

[emphasis added]

11    During the course of the hearing of the appeal, the appellant made a number of oral submissions. The appellant was not represented by a lawyer. The appellant was assisted in making oral submissions by an interpreter. In making oral submissions, the appellant first referred to p 149 of the appeal record which is p 13 of the findings and reasons of the Minister’s delegate. The observations on p 13 of the delegate’s decision are not relevant. The relevant decision is that of the Tribunal and, in the context of an appeal, the relevant decision is the decision of the primary judge in addressing the grounds upon which the appellant relied in seeking judicial review of the Tribunal’s decision. The appellant also referred to p 81 of the appeal record which is a document under the letterhead of the “Human Rights Commission of Sri Lanka Regional Office”. It refers to a complaint, the nature of the complainant (the appellant’s mother) and the category of the complaint (missing person). The appellant says that this document goes to the question of potential harm the appellant claims to suffer. The appellant says that this is a document available to the authorities. The appellant says that the Tribunal did not have proper regard to this document. However, at para 24 of the Tribunal’s reasons, the Tribunal expressly refers to the document in this way:

•    a receipt from the Human Rights Commission of Sri Lanka regional office in Batticaloa that reflects a complaint made by his mother that the applicant had gone missing on 16 October 2006 and noting that he returned on 29 October 2006.

12    The Tribunal took that document into consideration in evaluating the claims of the appellant as to a real chance of future likely harm. At para 25, the Tribunal said this:

The Tribunal accepts, as the most recent submission noted, that the applicant was taken by the LTTE in October 2006 against his will as he described and spent 13 days with them before successfully escaping the second time he tried. His various accounts were generally consistent. Minor inconsistencies did not detract from that claim. The Tribunal accepts that he escaped with three others, one of whom was killed and one injured. It accepts that the experience would have been terrifying.

13    It can be seen therefore that the Tribunal took the document into account and accepted that in October 2006 events occurred as the appellant contended and that those events would have been terrifying. It is not right to say that the Tribunal failed to have regard to this document. As the paragraphs quoted at [10] of these reasons indicate, the Tribunal ultimately reached its findings based upon an acceptance of the appellant’s own evidence about likelihood of harm as to the future: see [39] to [41] of the Tribunal’s reasons. The appellant also contended that the Tribunal had failed to have regard to the relevance and importance of his “family relationships” and in particular his relationship with his brothers and the extent to which those relationships would cause him to be fearful of a risk of serious harm. However, the Tribunal had regard to all of those matters at [38] to [45] of its reasons and at [47] to [51] of its reasons. The primary judge addressed these contentions in dismissing the application for judicial review. I mention those matters later in these reasons. The appellant, in oral submissions, also referred to [64] of the Tribunal’s reasons as indicating a failure to have regard to his relationships with his brothers, his cousin and other family members. However, the observations at [64] are simply a short-form summary of the reasoning which went before: note [38] to [45] and [47] to [51] of the Tribunal’s reasons.

14    I have reviewed the Tribunal’s reasons and the material before the Tribunal in the appeal record. I am entirely satisfied that the primary judge properly and reasonably considered ground 2. The primary judge did not fall into error in the consideration of ground 2.

15    Ground 1 of the application before the primary judge was in these terms:

Ground 1

The Tribunal fell into error in making findings as to the risk to the applicant on return to Sri Lanka on the basis of experiences in earlier times when circumstances in Sri Lanka had, on the evidence of Country Information relied on by the first respondent and by the Tribunal had changed.

PARTICULARS

(i)    The Tribunal found that the applicant had undertaken travel in the period to 2007 and used those experiences as a basis for likely risks, or rather the lack of risk, to the applicant should he return to Sri Lanka in 2015.

(ii)    The Tribunal based findings on the risk to the applicant caused by his family connections on events between 2006 and 2007.

16    As to ground 1, the primary judge said this:

35.    Ground 1 states that the Tribunal erred in assessing the applicant’s risk of harm on return to Sri Lanka by relying on experiences in earlier times when the country information indicated that circumstances in Sri Lanka had changed. The particulars state that the Tribunal relied on the applicant’s ability to undertake travel in the period to 2007 to find he did not face a risk if he returned to Sri Lanka in 2015, and also refer to the Tribunal’s reliance on findings about the risk to the applicant caused by his “family connections in events between 2006 and 2007”.

36.    Contrary to the applicant’s complaints in ground 1, past events are relevant to determining future risk, as long as they are not considered determinative of the likelihood of harm in the future [see Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559; Minister for Immigration v Rajalingam (1999) 93 FCR 220; Abebe v Commonwealth (1999) 197 CLR 510 at [82] – [83]]. It was open to the Tribunal to assess the credibility and veracity of the applicant’s claims to fear harm from the Sri Lankan authorities by critically examining the past experiences and events that he said gave rise to a future risk of harm on return to Sri Lanka. For example, the Tribunal’s findings that the applicant did not attract the adverse attention of the authorities when he departed Sri Lanka in 2007, had not suffered any harm from the authorities because of any familial connections with the LTTE and that no enquiries had been made of the applicant at any stage including since he had been in Australia were based on the Tribunal’s acceptance of the applicant’s own evidence [see [31] to [34], [45] to [51] and [37] of the Tribunal’s reasons]. Such findings were probative of a prospective assessment of what risk of harm the applicant might face in the future on his return to Sri Lanka. If the applicant was not harmed by, or of any adverse interest to, the authorities at a time when he claimed this was most likely to have occurred and was the reason or part of the reason he left Sri Lanka, then it followed logically that his risk of harm from the authorities upon return to Sri Lanka now was likely to be substantially reduced, in circumstances where he did not claim that there had been more recent events that would bring him to the adverse attention of the authorities. No jurisdictional error is demonstrated.

[emphasis added]

17    I am entirely satisfied that the primary judge properly and reasonably considered ground 1 of the application before his Honour. I am satisfied that the primary judge properly and reasonably and without any error considered the reasoning and findings of the Tribunal. I am satisfied that the primary judge did not fall into error in determining the question of whether the Tribunal had fallen into jurisdictional error.

18    As I mentioned earlier, I have considered the Tribunal’s reasons and the material before the Tribunal as reflected in the appeal record. It is not necessary in these reasons to set out all of the factual findings and a narrative of the factual matters. I am satisfied that the primary judge accurately reflected the relevant narrative of events and the findings and conclusions of the Tribunal at [3] to [28] of the reasons of the primary judge. Those matters were based upon the submissions put to the primary judge by the parties themselves. Clearly, it was also based upon the primary judge’s review of the Tribunal’s reasons and the relevant documents before the Tribunal. The narrative of the relevant events and the findings and conclusions of the Tribunal set out at [3] to [28] of the reasons of the primary judge are set out below (footnotes omitted):

3.    The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 20 June 2012. He participated in an entry interview on 22 August 2012, where he first outlined his reasons for departing Sri Lanka.

4.    The applicant lodged a protection visa application in November 2012, together with a completed Form 80. He appointed a registered migration agent from the Refugee and Immigration Legal Centre to represent him in connection with his application. In support, the applicant provided some documents that included a Sri Lankan driving licence and a copy of a Human Rights Commission of Sri Lanka complaint slip. The applicant set out his written claims for protection in a typed statutory declaration dated 17 November 2012.

5.    The applicant claimed to fear harm from the Sri Lankan Army (SLA) due to his Tamil ethnicity and because the SLA believed that he had joined the Liberation Tigers of Tamil Eelam (LTTE). He also feared harm because he left Sri Lanka unlawfully. The applicant claimed that on or around 16 October 2006, he was kidnapped by the LTTE on his way home from grocery shopping and was taken to a LTTE house. He managed to escape after 14 days. During his absence, his mother reported him missing to the local police and the regional office of the Human Rights Commission of Sri Lanka. The applicant claimed that because he was reported missing, the police and the SLA would assume that he had joined the LTTE, and the fact that he was kidnapped would not be taken into account. The applicant claimed that his village had a strong military presence and he feared that he would be taken into custody. He therefore arranged to go to Qatar to work, where he remained for three years on a working visa. When his visa was about to expire in 2010, the applicant returned to Sri Lanka but continued to fear that the SLA would take him, as he was a young Tamil male and would not be believed that he was forced to be with the LTTE for 14 days. The applicant claimed that on two (unspecified) occasions, he was stopped by the SLA and interrogated and accused of being LTTE. The applicant also claimed to fear harm from the authorities for departing Sri Lanka unlawfully and as a returned failed asylum seeker. He claimed he would be arrested and detained at the airport on his return and face punishment for not having a valid passport. He claimed he could relocate within Sri Lanka to avoid harm, had no support and would be unable to obtain employment. He feared harm from the authorities and the SLA due to his Tamil ethnicity, having been forced to go with the LTTE, as a young male Tamil and because he left Sri Lanka illegally.

6.    The applicant also claimed for the first time prior to his Tribunal hearing on 4 May 2015, that he had “a number of relatives that were in the LTTE”.

The delegate

7.    On 23 September 2013, the applicant was invited to an interview with the delegate, which he attended on 11 October 2013.

8.    Following the interview, on 22 October 2013 the applicant’s representative lodged written submission (36 pages) addressing concerns raised by the delegate during the interview and citing country information in support of the applicant’s claims.

9.    In a decision dated 11 December 2013, the delegate refused to grant the applicant a protection visa. The delegate was not satisfied of the applicant’s core claims, on the basis of detailed adverse credibility findings and its assessment of independent country information. For example, the delegate found that the applicant’s ability to obtain a Sri Lankan driving licence 18 days following his claimed escape from the LTTE was inconsistent with his claim to be in hiding for five or six months at that time. The delegate also relied on the applicant’s ability to depart and arrive in Sri Lanka without difficulty when he travelled to and from Qatar for work to find he was of no adverse interest to the authorities. The delegate also relied on country information about improved country conditions for Tamils and the processes and penalties for returning Sri Lankans to find that the applicant did not meet the criteria for a protection visa.

The Tribunal proceedings

10.    On 19 December 2013, the applicant lodged an application with the Tribunal to review the delegate’s decision, and appointed the same migration agents to represent him on the review.

11.    On 6 March 2015, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 6 May 2015 and to provide any written submissions and witness statements by 29 April 2015.

12.    Prior to the hearing, on 4 May 2015 the applicant’s representative emailed the Tribunal and provided it with extensive (31 pages) written submissions together with a statement from the applicant dated 4 May 2015. The written submissions responded to concerns raised by the delegate and cited country information in support of the applicant’s claims. The statement from the applicant also responded to concerns raised by the delegate but, critically, raised different or additional claims for the first time, which asserted, as mentioned at [6] above, that he had “a number of relatives that were in the LTTE”. The Tribunal expressly considered the submissions and the applicant’s statement.

13.    On 5 May 2015, the applicant accepted the invitation to attend the hearing on 6 May 2015 and provided the details of his representative who would attend the hearing. The applicant attended the hearing on 6 May 2015 with his representative and a Tamil interpreter but the hearing was adjourned.

14.    On 18 August 2015, the applicant was informed that the member constituting the Tribunal was no longer available and a different member would complete the review.

15.    On 11 September 2015, the reconstituted Tribunal invited the applicant to attend a resumed hearing scheduled for 27 October 2015.

16.    On 21 October 2015, the applicant accepted the invitation to attend the resumed hearing and provided the details of his representative who would attend the hearing. The applicant attended the resumed hearing on 27 October 2015 by video conference assisted by a representative and a Tamil interpreter.

17.    On 4 November 2015, the applicant’s representative lodged post hearing submissions citing further country information in support of the applicant’s claims. The Tribunal expressly considered the submissions.

The Tribunal’s decision

18.    On 21 June 2016, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa. The Tribunal accepted, despite various inconsistencies in the applicant’s evidence regarding the period of time that he spent with the LTTE, that he was taken by the LTTE in October 2006 against his will and spent 13 days with them before successfully escaping. It also accepted that one of his fellow escapees was injured and another was killed and that the [experience] would have been terrifying.

19.    The Tribunal also accepted that the applicant had a previous encounter with the LTTE in 2005 when he was stopped and questioned and asked for identification. The Tribunal accepted further that after the applicant escaped from the LTTE, he was called to the police station for an “inquiry” where he was questioned, and that representatives from the Human Rights Commission of Sri Lanka took him home. The Tribunal noted that the applicant stopped doing farm work and stayed in his aunt’s house, was scared of being kidnapped by the LTTE again, and had no further trouble from the LTTE or the authorities before he left Sri Lanka in January 2007. On the basis of the applicant’s own evidence, the Tribunal found that he had no difficulty leaving Sri Lanka in 2007.

20.    On the basis of the above finding, the Tribunal accepted that the applicant feared the LTTE before and after escaping from them and that he left to work overseas to get way from the threat they posed to him after he had escaped. However, the Tribunal relied on the applicant’s evidence about his ability to depart his local area and leave Sri Lanka without difficulty and his acknowledgement that there had been on inquiries made of him or about him, other than the police report after the LTTE kidnapping and two incidents where the SLA stopped him on the street and asked him whether he was back from the movement. The Tribunal found the applicant had not suffered serious or significant harm in Sri Lanka from any Sri Lankan authority but accepted that he had suffered such harm from the LTTE when he was kidnapped, detained by force and escaped.

21.    The Tribunal accepted the applicant’s evidence that his mother organised for him to come to Australia and that no one had inquired about him since he had been in Australia. It also accepted the applicant’s evidence about his father and brothers but found he had not claimed to fear any harm on the basis of his relationships with them. In particular, the Tribunal noted the applicant’s evidence that his father was taken away in a white van when he was very young and it accepted that when he was at school his older brothers were regularly rounded up by the authorities about once a month, questioned about the LTTE and their activities, beaten and released after a day. The Tribunal also outlined the applicant’s evidence about the experiences of three of his brothers and his sisters and that the LTTE did not approach any family members for support. Based on the applicant’s evidence about the history of his father, siblings and himself, the Tribunal found that the applicant had not suffered any harm from the authorities in the past because of his relationship with one or more of his father or siblings.

22.    Although the applicant claimed that he had met his cousin (“UT”) once in 2002 to 2004 and that he was a “Black Tiger”, the applicant conceded that his cousin had not caused any problem for anyone else in his family. The Tribunal also found the applicant’s evidence about why his cousin would be a problem for him was “confusing and unpersuasive”. His fresh claim that a policeman told him to get away from the LTTE reinforced the Tribunal’s view that the principal reason that the applicant left Sri Lanka in 2007 was his fear of the LTTE, not the SLA or other Sri Lankan authorities. The Tribunal noted the applicant was unable to identify any other relationships that would cause him problems. The Tribunal noted the applicant’s evidence that his mother had told him that he had other relatives with LTTE links. Given the applicant’s history and claimed familial links to the LTTE, the Tribunal did not accept that the links which he claimed his three relatives and another individual had with the LTTE caused him to suffer any harm in the past or that there was a real chance that he would suffer serious harm or a real risk of significant harm in the future from any Sri Lankan authority.

23.    The Tribunal accepted that the applicant unsuccessfully tried to travel to various countries after his return to Sri Lanka in 2010, including Italy and Cyprus, and that he was told he could stay in Australia permanently if he came by boat.

24.    The Tribunal noted the applicant’s evidence that he left Sri Lanka because there was no peaceful life and freedom for Tamils, but gave “little weight” to his claim that his village temple was recently destroyed by unknown people, as the claim was raised late, it would have been a “shocking” event in his village and the claim was inconsistent with his earlier evidence about his older brother and sisters who had “no problems”.

25.    The Tribunal accepted that the applicant was looking for a life away from the “racial discrimination” against Sri Lankan Tamils. However, on the basis of the independent country information before the Tribunal, it did not accept that the applicant faced a real risk of serious or significant harm because of discrimination against Tamils in his home area, which was notably a predominantly Tamil area.

26.    The Tribunal accepted that the applicant departed illegally by boat and would undergo processing, arrest and detention but, on the basis of independent country information, did not accept that the process was discriminatory. The applicant did not claim that he could not afford to pay the fine that may be imposed. The Tribunal found this was consistent with his family’s financial capacity to pay to arrange for him to go to Italy and Cyprus and pay people smugglers for the boat trip to Australia. The Tribunal accepted that the applicant’s history of being kidnapped by the LTTE may be disclosed. However, relying on the same country information, it did not accept that his profile, including the claimed links of LTTE relatives and leaving Sri Lanka illegally, would cause the applicant to be suspected of being an actual or imputed LTTE supporter. The Tribunal relied on independent country information and found that those suspected of facilitating or organising a people smuggling venture were charged with a “different more serious offence”. The Tribunal did not accept that the applicant would suffer serious or significant harm because of the process that he would undergo at the airport.

27.    On the basis of country information, the Tribunal accepted that the applicant may be detained for up to three days but found that the risk of torture or mistreatment for most returnees was low. It did not accept that there was a real chance that the applicant would suffer serious harm or a real risk he would suffer significant harm whilst detained or gaoled for up to three days. The Tribunal accepted that the applicant would be fined and released on bail on a personal surety or a family member acting as guarantor and found that his family would be able to pay the fine and provide any necessary surety or guarantee, given his family’s financial capacity.

28.    The Tribunal rejected the applicant’s claims to fear harm and concluded that he did not satisfy s.36(2)(a) or s.36(2)aa) of the Migration Act 1958 (Cth) (Migration Act).

19    The appellant has failed to make good the ground of appeal relied upon before this Court. Apart from the matters described in these reasons, I have also examined the reasons of the Tribunal with an eye to determining whether there is something in the nature of error which stands out although not expressly made the subject of particulars or express content in support of the ground. I can find no such error.

20    The appeal must be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.

Associate:

Dated:    23 May 2018