FEDERAL COURT OF AUSTRALIA

BMR16 v Minister for Home Affairs [2018] FCA 1282

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from orders of the Federal Circuit Court of Australia made on 21 February 2018. The primary judge dismissed an application for judicial review of the decision of the Immigration Assessment Authority (Authority) which affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the appellant a Safe Haven Enterprise (Class XE) (subclass 790) visa (the visa).

2    The appellant is a citizen of Sri Lanka of Tamil ethnicity who arrived on Christmas Island on 17 August 2012. According to the Authority, he lodged an application for the visa on 17 August 2015. On 27 April 2016 the delegate refused the grant of the visa. On 2 May 2016, the matter was referred to the Authority. The Authority’s decision was made on 25 May 2016.

3    Before turning to the Authority’s decision and the decision of the primary judge, I emphasise that an appeal of this kind is not the occasion for this Court to consider evidence for the first time, unless it is directed to show jurisdictional error on the part of the Authority, or error on the part of the primary judge.

The Authority’s decision

4    The Authority decided as follows.

5    At [10], the Authority found that the appellant’s account, particularly of having been questioned and detained after specific security incidents during the Sri Lankan civil war, was plausible and credible. At [11], the Authority accepted that the appellant and his father were subject to numerous arrests and detentions during the period of the civil war.

6    Also at [11], the Authority accepted that during the civil war the appellant and his father were questioned by the Sri Lankan Army (SLA) when they were rounded up with other Tamils because they were collectively suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE). The Authority also accepted that the appellant and his father may have come under suspicion because as three-wheeler drivers they were suspected of transporting LTTE personnel or supplies, or of having information about LTTE movements.

7    However, the Authority said, there was no information before it to suggest that the appellant or his father were ever found to have been involved with the LTTE. They were detained for brief periods then released. Given that the war ended in 2009, the Authority did not consider that there was a real chance that routine arrests of this nature would continue. Country information indicated that the Sri Lankan security authorities continued to monitor Tamil populations in the Northern and Eastern Provinces which were still heavily militarised, although it appeared that the highly oppressive monitoring and registration regime in place just after the war was being eased. Reports of arbitrary arrests and detentions had significantly reduced. The purpose of the ongoing monitoring seemed now to be less concerned with seeking out those people who were previously involved with the LTTE than with ensuring that the organisation did not re-emerge, and with eliminating dissent.

8    The Authority accepted that some people who had certain links with the LTTE may continue to be at risk of harm, especially if they were taken into detention by security authorities as part of the process of monitoring, given the evidence about the prevalence of torture and mistreatment in detention.

9    Based on the information provided by the appellant, the Authority found that the authorities did not regard him as having past or present connections with the LTTE.

10    The Authority then considered the appellant’s claims in relation to his role as a village councillor between 2010 and 2012. The Authority also considered, at [14], the arrest and detention of the appellant’s brother in 2012, as follows:

I accept that the applicant’s brother was detained in 2012 because he was accused of involvement in pro-LTTE activity. According to the applicant’s account, he was released quickly and then left Sri Lanka to work overseas for 12 months, returning in 2013. The applicant says that his brother had no difficulty leaving or re-entering Sri Lanka and has not claimed that his brother has had any subsequent difficulties. I find that his rapid release and his ability to subsequently leave Sri Lanka and return without difficulty, together with the fact that he has not been subject to further arrest, indicates that he is not currently under suspicion as a supporter of the LTTE. I find that no adverse profile would be imputed to the applicant because of his brother, and find that he does not face a real chance of harm of any kind because of the connection with his brother or because of any activities in which his brother has been involved.

11    At [15], the Authority considered the UNHCR’s most recent 2012 guidelines for assessing the eligibility of Sri Lankans for asylum. The Authority continued that, given its findings about the profile of this appellant, it concluded that he was not a person of particular concern to the Sri Lankan authorities. On the basis of the appellant’s evidence, the Authority found that he did not have any past or current links or connection with the LTTE. While the Authority accepted that as a three-wheeler driver, and as a member of his village council, he might be viewed as a source of useful information and questioned more often than others, the Authority did not accept that such questioning in the current climate reached the threshold for persecution.

12    The Authority did not accept that the appellant was detained in early 2012. Given that finding, the Authority said, there was no credible evidence before it that the appellant had been detained since the end of the war. The credible evidence before the Authority, it said, did not support a finding that since 2009 the appellant had been subjected to surveillance, monitoring, harassment, threats or questioning to such a degree that it amounted to persecution. The evidence did not indicate that there was a real chance that this situation would change in the reasonably foreseeable future.

13    The Authority found that the appellant was not at risk of harm of any kind in Sri Lanka because of real or suspected links to the LTTE.

14    The Authority continued, at [16], to reason that given that almost three years had passed since the appellant’s departure; given the evidence that the security situation was improving in the Eastern Province, and that the level of monitoring was easing; and given its finding that the authorities had no reason to suspect that the appellant was involved with the LTTE or was an LTTE sympathiser, the possibility that the appellant would experience future harm amounting to persecution was remote. Having regard to the independent information, and to the individual circumstances of this appellant, the Authority was not satisfied that there was a real chance that he faced serious harm amounting to persecution on return to Sri Lanka for reason of his Tamil ethnicity, or because of a political opinion (support for the LTTE) that might be imputed to him because of his ethnicity, or for any other reason, including his occupation as a three-wheeler driver, or as a village councillor.

15    The Authority went on to consider, at [17]-[19], attempts at extortion of the appellant and his family by people claiming to be from the Criminal Investigation Department (CID) and by SLA personnel.

16    At [20] and following the Authority considered discrimination in Sri Lanka because the appellant spoke only Tamil. The Authority said that the appellant’s evidence about his circumstances did not indicate that he was subject to a level of discrimination, as a Tamil, so serious as to amount to persecution.

17    The Authority then went on to consider the appellant’s illegal departure from Sri Lanka and any consequences that might flow from being a failed asylum seeker. It was in that context that the Authority referred to the Immigrants and Emigrants Act of Sri Lanka. Based on the Department of Foreign Affairs and Trade (DFAT)’s most recent advice and the appellant’s own evidence about his circumstances, the Authority found that there was no real chance that the appellant would now or in the reasonably foreseeable future be subjected to serious harm amounting to persecution as a failed Tamil asylum seeker who departed from Sri Lanka illegally.

18    The Authority then went on to make a complementary protection assessment. It said the appellant had not made specific claims to complementary protection separate from those put forward in relation to the refugees criteria.

The proceedings in the Federal Circuit Court

19    There was an application for judicial review of the Authority’s decision to the Federal Circuit Court of Australia. There were four formal grounds of review. They were as follows, as written.

1.    ASSESMENT was unfair because the ASSESSOR did not examin the Provision of the Prevention of Terrorism Act of SRI LANKA. He/SHE ONLY Examin the Immigration and Emmigration Act of SRI LANKA.

2.    The Assessor did not taken to Account that close members of my family were arrested and detained under the PTA.

3.    The Assessor accepted that I had Problem with SRI LANKAN Authorities, but did not Pay due attention to this fact.

4.    The Assessor fail to understand the Current Situation in SRI LANKA Pertaining to Tamils likeme – Paragraphs 14, 15, 16, 17 and 18.

The decision of the primary judge

20    I shall set out in particular the paragraphs of the reasons of the primary judge which were criticised as erroneous by the appellant at [9] of his written submission to this Court, dated 1 August 2018. Those paragraphs were 4, 7(9), 7(11), 7(14), 10, 11, 16, 21 and 22.

[4]    The claims he made in support of that application are summarised at [4] of the Authority’s decision which I set out below:

…

•    He was born in Jaffna district. He moved with his family to Trincomalee in Eastern Province to escape the conflict in 1986 and they returned to Jaffna in 1988

•    From 1990 to 1994 the applicant and his family lived in a refugee camp in Tamil Nadu, India; they were not formally recognised as refugees

•    They returned to Jaffna briefly but moved again to Trincomalee and the applicant resided there until he came to Australia

•    One of the applicant's brothers lives in the UK and he has a sister in Canada. The other members of his family remain in Trincomalee

•    The applicant completed year 11 at school in 2001 and completed a six month trade course as an electrician

•    He and his father worked as three-wheeler drivers from 2006

•    Three-wheeler drivers were often harassed and questioned by the Sri Lankan Army (SLA) because they were suspected of transporting LTTE personnel or supplies; soldiers also demanded that they be given free rides

•    Prior to the end of the civil war in 2009 the applicant's father was arrested and detained about eight times for up to two days and questioned about who he knew in the LTTE

•    The applicant himself was arrested three times while driving. Sometimes he would be stopped at checkpoints and when it was discovered that he only spoke Tamil he would be arrested

•    In 2006 when he was driving one night after the shooting of five Tamil students he was attacked by SLA at a checkpoint

•    In March 2009 there was an explosion in Trincomalee and the applicant was arrested and detained at a checkpoint when it was found he could not speak Sinhalese

•    In April 2009 an army sentry box at a UNHCR camp was attacked by someone who arrived in a three-wheeler, and all the drivers waiting at the stand outside the camp were attacked by soldiers

•    During 2009, after the defeat of the LTTE, the applicant received phone calls from people claiming to be from the LTTE intelligence unit asking for protection money. They threatened that the applicant and members of his family would be kidnapped if they did not pay. The applicant did not believe that the callers were really from the LTTE. He told the police but did not think they would protect him. He made a complaint with the Human Rights Commission so that there would be an independent record of the threats. The applicant spent some time in Mannar (on the western side of the island) because he was afraid, but the calls stopped after a few months

•    From 2010 until he left Sri Lanka the applicant was one of twelve people elected to the village council. Because the councillors were considered to have information about activities in the village, every time something happened the authorities questioned the applicant. He has provided inconsistent information about a claimed detention in early 2012 which he says led to his decision to depart Sri Lanka

•    The applicant claims that all Tamils are harassed, and he is particularly under suspicion as a three-wheeler driver and because of his role on the village council; he says that the government does not protect Tamils

•    Since he has been in Australia, officials from the CID have approached his family saying that they have documents showing that the applicant is in Australia and offering to delete the records if bribes are paid. His family has not paid the money and the applicant fears he may be arrested at the airport if he returns

•    The applicant claims that it is not safe for him to continue to work as a three-wheeler driver, but he would be unable to obtain any other work because he does not speak Sinhalese

…

[7]    The Authority’s reasons for decision are summarised in the first respondent’s written submissions at [9] to [18] and I adopt those paragraphs and set same out below:

9    The IAA found that the applicant’s accounts of having been subjected to questioning, detention and assaults during the war years, after specific security incidents, to be plausible and credible: CB 238, [9], [10]. Accordingly, the IAA accepted that the applicant and his father were subject to numerous arrests and detentions during the period of the civil war because they were suspected of supporting the LTTE and that they may have come under suspicion because, as three-wheeler drivers, they were suspected of transporting LTTE personnel or supplies or of having information about LTTE movements: CB 238, [11]. However, the IAA found that there was no information that the applicant or his father had ever been found to have been involved with the LTTE and that, given the war ended in 2009, there was not a real chance that routine arrests of that nature would continue: CB 238, [11].

…

11    The IAA further accepted that the applicant’s brother had been detained in 2012 and accused of involvement with the LTTE, however, found that his rapid release and ability to leave and return to Sri Lanka without difficulty, together with the fact that he had not been subject to any further arrests, indicated he was not currently under suspicion as a supporter of the LTTE: CB 240, [14]. Accordingly, the IAA found that no adverse profile would be imputed to the applicant because of his connection with his brother: CB 240, [14].

…

14    The IAA also accepted that, subsequent to the applicant’s departure, his family had been approached by people claiming to be the CID who offered to destroy documents relating to the applicant if a bribe was paid. The IAA found that, if the people were in fact from the CID they were not acting in an official capacity, that it was doubtful they were in possession of documents showing that the applicant was in Australia and that the attempts to extort money would not have any bearing on the way the applicant would be treated if he were to return to Sri Lanka: CB 241, [18].

…

[10]    I begin consideration of the matter by reference to the grounds in the application. The first two grounds are, in effect, that the Authority did not consider the impact of the Prevention of Terrorism Act (Sri Lanka) on the applicant given that close members of his family were arrested and detained under that Act. The answer to that ground is that the Authority did in fact “accept that the applicant and his father were subject to numerous arrests and detentions during the period of the civil war”: see [11] of the Authority’s reasons. For that reason, the first two grounds as they stand are to be rejected.

[11]    However, the ground raises another issue that needs some further consideration. As I have mentioned, the applicant sent to the Department a number of documents concerning the Prevention of Terrorism Act, including the article by Julian Borger. There is no express reference in the Authority’s decision to that material. That raises two questions: first, whether the Authority in fact considered the material; and, secondly, if it failed to consider the material, whether it fell into jurisdictional error.

…

[16]    The Borger article first states that:

Sri Lankan security forces have continued to torture Tamil detainees even after the election of reformist president Maithripala Sirisena in January, according to a report.

…

[21]    In summary, in [11], the Authority accepted, as I have already mentioned, “that the applicant and his father were subject to numerous arrests and detentions during the period of the civil war” and goes on to say that it accepted that during the civil war, which ended in April 2009, “the applicant and his father were questioned by the SLA when they were rounded up with other Tamils because they were collectively suspected of supporting the LTTE”.

[22]    It also accepted “that the applicant and his father may have come under suspicion because as three wheeler drivers they were suspected of transporting LTTE personnel or supplies, or of having information about LTTE movements”. However, what was important to the balance of the Authority’s reasons was that it found no information “that the applicant or his father were ever found to have been involved with the LTTE”. It explained in this respect that they were both detained for brief periods and then released.

(Footnotes omitted.)

21    It is also necessary to refer to the primary judge’s dispositive reasoning.

22    At [27], the primary judge reasoned that, in effect, the finding of the Authority was that it was not satisfied that the appellant would be detained or there was any risk that the appellant would be detained in Sri Lanka. That reasoning was based partly upon the DFAT reports about the reduction in arbitrary arrests and detentions and partly because of its assessment of the appellant’s own claims and what it had accepted had occurred in the past. On the basis of that understanding of the Authority’s reasons, the article of Julian Borger, dated 13 August 2015, had little, if any, ongoing relevance.

23    The primary judge said, at [28], that was because that article and the report it referred to focused upon the treatment of Tamils in detention. It was not necessary for the Tribunal to consider what might occur to the appellant in detention because it was not satisfied that there was a real risk that the appellant would be detained. Indeed, it appeared from [11] that the Authority accepted that there was ongoing torture and mistreatment in detention; however, the analysis of the article in light of the reasoning of the Authority suggested two things.

24    First, the primary judge said at [29], he could not infer that the Authority overlooked that material simply because it was not necessary to the Authority’s conclusion; and secondly, even if it had overlooked the material, the primary judge said he would not be satisfied that it fell into jurisdictional error in doing so. On this basis the primary judge rejected the first and second grounds.

25    At [30], the primary judge considered the third and fourth grounds, to the effect that the Authority erred by accepting that the appellant had a problem with the authorities but did not pay attention to that and that it failed to understand the current situation in Sri Lanka.

26    As to these grounds, at [31] the primary judge said that the Authority did accept, to some extent, the appellant’s claims as to the past harm that occurred to both him and his father but then assessed, on the basis of its understanding of the current situation in Sri Lanka, that there was no real risk of significant harm or serious harm. There was no error in the approach taken by the Authority. While the fact that a person had been harmed in the past was relevant to whether or not they might be harmed in the future, it was not determinative of that question.

27    The primary judge said at [32] that the Authority was obliged to consider the current and possible future circumstances in Sri Lanka in light of both the past and current circumstances on the information before it and its statement of reasons revealed that it did just that. The primary judge said that the assertion that the Authority failed to understand the current situation in Sri Lanka may well be correct. It may be, as the appellant said, that the circumstances there were not safe for him; however, what the Court was restricted to considering was whether the Authority made its decision based upon findings and inferences of fact that were available on the material before it. So long as it did that, then even if it was wrong, it had properly fulfilled its obligation to review the delegate’s decision. In his Honour’s view, for the reasons given by the Authority as summarised by him, the Authority’s findings were open on the material that it referred to. For those reasons, he rejected grounds 3 and 4.

28    As to other grounds, the primary judge said that the Authority did not accept that the appellant had a perceived connection with the LTTE. Further, ultimately what was complained about was that the Authority made wrong findings of fact. The primary judge said, at [40], that the appellant’s submissions both in writing and made orally at the hearing addressed the question whether he was in fact a refugee or otherwise owed protection by Australia. The primary judge said that this was a matter left to the Authority by the Migration Act 1958 (Cth) and so could not support the relief that the appellant sought.

The notice of appeal

29    The notice of appeal to this Court was in the following terms:

Jurisdictional error due to not following or facts presented in the evidence.

The parties’ submissions

30    The appellant was unrepresented in this Court but filed written submissions on 1 August 2018. The material parts of the appellant’s written submissions were as follows:

2.    The Primary Judge and the Second Respondent failed to exercise proper jurisdiction and thereby fell into jurisdictional error.

3.    Both the Primary Judge and the Second Respondent did not examine the evidence produced as to my perceived links with the LTTE and consequent dangers I face if I were to be returned to Sri Lanka.

4.    The provisions of the Prevention of Terrorism Act 1978 passed in Sri Lanka was not examined adequately by the Primary Judge and the Second Respondent as an instrument to prosecute and harass Tamils as an ethnic group in their aspirations to live with freedom and dignity in Sri Lanka.

5.    The principles of Natural Justice of applying a minimum standard of fairness in examining the evidence I produced was not done by the Primary Judge and the Second Respondent.

6.    There is a common law duty to act fairly in the sense of according procedural fairness in making decisions which affect basic rights. I submit that this was not done in my case.

7.    The Primary Judge misdirected himself by examining the process of judicial review versus merits review. I submit that the Court did not investigate the decision of the Second Respondent in the light of legality as contained the Migration Act of 1978.

8.    The Second Respondent did not exhibit independence in my case and was unduly influenced by the First Respondent’s direction: especially in regard to the situation of Tamils in Sri Lanka.

9.    Reference is made to the following paragraphs of the Primary Judge's judgment which I submit was wrong and led to jurisdictional error: 4, 7 (9), 7 (11), 7 (14), 10, 11, 11,16, 21 and 22.

31    The written submissions on behalf of the Minister, dated earlier than the appellant’s written submissions I have just set out, were as follows.

32    The Minister submitted that the sole ground of appeal was meaningless and did not disclose any jurisdictional error on the part of the Tribunal or appellable error by the primary judge.

33    Further, the Minister submitted, the appellant required leave to raise this ground of appeal as it was not raised in the court below.

34    The Minister submitted that leave should be refused on the basis that the ground of appeal had insufficient prospects to warrant the exercise of the Court’s discretion. At its highest, the Minister submitted, this ground simply indicated disagreement with the Authority’s factual findings and sought that the Court undertake an impermissible review of the merits of the Authority’s decision.

35    In his oral submissions, the appellant said that he had not told the Department or the Authority about his brother who was in London, and who now has refugee status and has a visa. His brother went to the United Kingdom legally as a student, and then applied for asylum as he could not have returned back to Sri Lanka. The appellant said he did not disclose this material as his brother’s application was then pending in the United Kingdom.

36    The appellant said he faced a threat because of his brother’s involvement in the LTTE movement. There was only a one year age difference between himself and his brother and they looked alike and the Sri Lankan authorities may identify him, the appellant, as his brother and he may face many threats on that basis. The appellant said in his submissions, that he had submitted the evidence to the Federal Circuit Court but the Minister objected to that evidence. The appellant accepted that his second brother went overseas and came back to Sri Lanka, but he was 10 years younger. The appellant said that people were facing problems in Sri Lanka that were not known in the outside world. He was ready to submit to the Minister whatever further evidence was required.

37    The appellant also sought to tender a press release dated 6 August 2018 from the “Office of the Prime Minister Transnational Government of Tamil Eelam” which has an address in New York.

38    The Minister objected to the tender of the press release on the ground of relevance. In further oral submissions counsel for the Minister addressed in turn the individual paragraphs of the appellant’s written submissions of 1 August 2018: as I have mentioned, the written submissions on the part of the appellant post-dated those of the Minister.

Consideration

39    I deal first with the tender of the press release. It is in my opinion not relevant to showing error on the part of the primary judge or jurisdictional error on the part of the Authority. In my view its irrelevance is established not only by reference to its date, 6 August 2018, long after the Authority’s hearing and the hearing before the primary judge, but also by reference to its contents. I reject its tender on the ground of relevance. I will however mark it as MFI-1.

40    As to the appellant’s oral submissions, the claim or evidence in relation to the appellant’s brother’s visa in the United Kingdom did not arise on the material before the Authority and what the appellant seeks now to put does not go to establishing error on the part of the primary judge or jurisdictional error on the part of the Authority. The appellant accepts that he did not disclose this material to the Department or to the Authority. He says this was because his brother’s application for a visa in the United Kingdom was then pending. But whatever the worth of the reason for not disclosing this material, it cannot now be put before this Court on appeal to establish relevant error.

41    I now consider the appellant’s submissions in turn. Before doing so, I indicate that a reading of those submissions suggests no more than that the appellant disagrees, or disagrees strongly, with the merits of the Authority’s findings and reasons.

42    Paragraph 2 is no more than prefatory and of itself contains nothing of substance.

43    Paragraphs 3 and 4 are in substance the same as paragraphs 1 and 2 of the grounds before the primary judge.

44    Paragraph 3, that both the primary judge and the Authority did not examine the evidence produced as to the appellant’s perceived links with the LTTE and consequent dangers if the appellant were to be returned to Sri Lanka, cannot be sustained in light of the detailed examination of the evidence by both the Authority and by the primary judge. In substance, this paragraph says no more than that the appellant disagrees with the results of that examination.

45    Paragraph 4 concerns the Prevention of Terrorism Act of Sri Lanka. It is not clear how it is said that the Authority made a jurisdictional error in this respect. In my opinion, the primary judge made no error in reasoning, beginning at [10] but particularly at [28], that it was not necessary for the Authority to consider what might occur to the appellant in detention because the Authority was not satisfied that there was a real risk that the appellant would be detained. Furthermore, in my opinion, it is not the bare terms of the legislation which was properly the focus of attention but what was done or not done by the Sri Lankan authorities. The Authority did not err in focusing on actual circumstances as it had found them to be.

46    Paragraph 5 is no more than another prefatory statement and of itself contains nothing of substance. The appellant submitted orally that the primary judge did not examine the evidence, but no detail was provided. The same be said about the appellant’s submission about the Authority’s alleged failure to examine the evidence the appellant adduced.

47    Paragraph 6 is another general statement and of itself contains nothing of substance. There is no evidence before me to indicate that the hearing before the primary judge was otherwise than procedurally fair. So far as the submission says the hearing before the Authority was not procedurally fair, the submission does not come to grips with the terms of Pt 7AA of the Migration Act. It is apparent that the Authority assessed the material which was before it.

48    Paragraph 7 is yet another general statement and of itself contains nothing of substance. The primary judge was rightly conscious of the limited role of the Federal Circuit Court on judicial review. That Court did not have jurisdiction to evaluate the merits of the Authority’s decision for the purpose of reaching what the Court might consider to be the preferable decision. I refer in particular to [32] of the primary judge’s reasons.

49    Paragraph 8, that the Authority did not exhibit independence, is not supported by any material. A reading of the Authority’s decision does not bear out this submission. It is true to say that the Authority had regard to country information but of itself that cannot suggest jurisdictional error on its part. If the submission is a claim of actual or apprehended bias, it has no foundation.

50    Paragraph 9 identifies particular paragraphs of the reasons for judgment of the primary judge. I have set out those paragraphs above. I see nothing in them which suggest appellable error on the part of the primary judge or jurisdictional error on the part of the Authority.

51    In my opinion, none of the appellant’s submissions shows error on the part of the primary judge or jurisdictional error on the part of the Authority.

Conclusion and orders

52    The appeal is dismissed, with costs.

Associate:

Dated:    22 August 2018