FEDERAL COURT OF AUSTRALIA

BIK18 v Minister for Home Affairs [2019] FCA 788

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, 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

REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1    The appellant appeals a decision from the Federal Circuit Court of Australia: BIK18 v Minister for Home Affairs & Anor [2019] FCCA 413. By that decision, the Federal Circuit Court of Australia dismissed his application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed an earlier decision of the delegate for the Minister for Immigration and Border Protection (as he then was) not to grant the appellant a Safe Haven Enterprise visa.

2    The sole ground of the appellant’s appeal to this Court is:

  1.    …

2.    JURISDICTIONAL ERROR DUE TO, NO [sic] FOLLOWING OR [sic] FACTS PRESENTED[.]

3    This ground is a formula seen on a number of occasions and, without particularisation as to the error of law or even the jurisdictional error, it is not particularly helpful. So it is necessary to dig a little deeper. Although some earlier decisions of the Court and some relatively recent decisions have pointed out that technically a failure to particularise a ground is a basis for it to be dismissed, the Court has never approached appeals on that basis. As observed by Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (at [9]), it will rarely be appropriate simply to dismiss a ground of appeal in a migration case for lack of particulars in circumstances where an unrepresented party has neither the legal training nor the background to understand the technicalities of court processes. In those circumstances, as has generally been the practice of the Court, there is an opportunity for the party to explain the basis on which the claim is advanced; that has been done in this case this morning.

CLAIMS BEFORE THE AUTHORITY

4    The appellant’s claims have been set out in each of the written decisions to which he refers this morning, both the Authority’s decision and the Federal Circuit Court’s decision. The appellant’s claims are recorded by the Authority (at [6]) in its decision:

•    He was born in … in … village … in Sri Lanka. He is of Tamil ethnicity and [of a particular Christian faith].

•    He has three brothers and three sisters, one of his brothers came to Australia about six years ago.

•    During the war the LTTE required one member of each family to go to war and his older brother T volunteered to join and the LTTE took him away.

•    After the war in 2009 the SLA targeted his district because it had been controlled by the LTTE since 1989. His village had helped with the preparation of funerals because for [sic] LTTE members and he had been MC for some of these funerals so he was specifically targeted by the SLA.

•    On 22 April 2009 the SLA moved the village to an army camp ... . Everyone was questioned and his brother T admitted to his involvement with the LTTE and was taken to rehabilitation. The LTTE confirmed the [appellant] was not an LTTE member.

•    He was released with his other family members in September 2009 and returned to his village in 2010.

•    In August 2011 he opened a shop attached to their family home and the whole family worked in the shop. T was released in from rehabilitation in October 2011 and worked in the shop.

•    A big army camp … was about 200 metres from their house. Soldiers regularly came and he, his brothers and brother in law would be questioned. They knew T had been to rehabilitation but asked why the [appellant] had not been.

•    Around February 2013 the soldiers questioning increased. On 1 April 2013 he organised a 50th birthday party for his mother. Soldiers came and asked them to turn down the loud music and they complied. The army took him to their camp and threatened him. A few officers questioned him about his involvement with the LTTE; they pushed him against the wall and hit him with a shoe. They told him he had to pay 5 lakhs rupees or they would send him to … jail.

•    The soldiers called his brother and told him they had to be paid by 3 April 2013. His brother agreed. He and his brother feared paying would be an admission that he was involved with the LTTE so decided not to pay.

•    On 3 April at 10.30-11pm at night as they were locking the shop four or five people pulled up in a large vehicle. One of the people put him in handcuffs, someone pointed a pistol to his head and another told him in Sinhalese ‘this is our country’.

•    He shouted ‘mother’. His mother and relatives ran out and he managed to get loose, hit the pistol pointing at him and ran away. The people took their vehicle and left.

•    He decided to leave and his mother rang his uncle who wanted to send him to Singapore. At 4am on 4 April he travelled to Colombo, his uncle paid an agent and he travelled to Singapore that day by plane.

•    After he left the authorities were afraid he would recruit new members to the LTTE and required his brothers to have a book signed by the CID every month in Colombo.

5    The Authority concluded by summarising that the appellant fears harm on his return to Sri Lanka because of his Tamil ethnicity, because he is from a former LTTE-controlled area and because of his imputed association with the LTTE.

BEFORE THE FEDERAL CIRCUIT COURT

6    The factual background is also set out in some detail in the judgment of the Federal Circuit Court (at [1]-[20]). The primary judge also summarised the decision of the Authority in reasonable detail (at [30]-[49]) as follows:

The [Authority’s] Decision

…

30.    At paragraphs 4 to 5, the [Authority] noted that it had received submissions from the [appellant]. The [Authority] noted that it had reviewed that document and, to the extent that the submissions dated 13 July 2018 contained argument, the [Authority] had regard to them: [4]. However, the [Authority] found that the submissions also contained “new information”; namely five country reports. In relation to these country reports, the [Authority] found that three of the reports predated the delegate’s decision and contained general country information. The other two reports did not have either footnotes or citations and the extracts contained general country information. There was no explanation provided as to why the information could not have been provided prior to the delegate’s decision and no reasons were given as to why it may be considered credible personal information. The [Authority] was not satisfied that the requirements of s.473DD(b)(i) or s.473DD(b)(ii) were met in relation to the country information. Furthermore, it was not apparent that there were any “exceptional circumstances” to justify considering the information.

31.    It is clear from the above that the [Authority] assessed this information in light of s.473DD of the Act.

 32.    The [Authority] then summarised the [appellant’s] claim (at [6]) as follows:

…

 33.    This is an accurate summary of the [appellant’s] claims.

34.    In relation to his identity and background, the [Authority] accepted that the [appellant] was of Tamil ethnicity and…, and that he was born in the Northern Province of Sri Lanka.

35.    The [Authority] also accepted that the [appellant’s] family was temporarily displaced on a number of occasions during the conflict and their home may have been damaged causing it to be uninhabitable in 2005.

36.    In relation to his claimed family connections to the LTTE, the [Authority] accepted aspects of his claims despite these not being raised at entry interview. It accepted that:

a)    the [appellant’s] family provided support including monetary support to the LTTE;

b)    the [appellant’s] father may have briefly been forced to undertake physical training with the LTTE; and

c)    the [appellant’s] uncles may have been members of LTTE more than 20 years ago.

37.    The [Authority] then undertook a refugee assessment as per s.5J of the Act and the meaning of “well-founded fear of persecution”.

38.    At paragraphs 10 to 30, the [Authority] assessed the [appellant’s] evidence in relation to his family links and imputed association with the LTTE, his status as a Tamil business man and his Tamil Ethnicity.

39.    The [Authority] accepted that the [appellant] is from the …, which was an LTTE controlled area during the war. It further accepted that the [appellant’s] older brother was forced to be part of the LTTE and was later taken to a rehabilitation camp, and that the [appellant] and his family spent time in a government camp. The [Authority] accepted it was plausible that the [appellant] was taken by the LTTE on two occasions and escaped on each occasion. The [Authority] also accepted that it was credible that the [appellant] may have been involved in LTTE activities whilst at school, including being an MC at funerals.

40.    The [Authority] was not satisfied that the [appellant’s] brother was head of the LTTE Communications Department. The [Authority] considered the claim was illogical given the [appellant’s] claim that his brother was an unwilling recruit and so soon after being trained would be given such a position of responsibility, would have only been approximately 21 years old at the time, had no relevant skills, and the [appellant] provided limited evidence as to his brother’s responsibilities in this role at the interview before the delegate. The [Authority] considered that the [appellant] embellished the brother’s role and was of the view that the brother was a low level LTTE cadre.

41.    The [Authority] referred to country information suggesting that close relatives of high-profile former LTTE members who remain wanted by the authorities may be subject to monitoring, but did not accept that the [appellant’s] brother would be considered a high profile former LTTE member. Accordingly, the [Authority] found that the [appellant] was not at any risk on this basis.

42.    The [Authority] accepted that the [appellant] was involved in a family business and that it was plausible that the family may have experienced some harassment from the Sri Lankan Army. However, the [Authority] was not satisfied of the claimed events of 1 and 3 April 2013 and found that the [appellant] fabricated these events in their entirety. The [Authority] reached this conclusion for a number of reasons, including that:

a)    it did not accept that the [appellant] and his family would knowingly bring attention to themselves by playing loud music next to an army base considering the claimed abuse his brother went through during his rehabilitation and the [appellant’s] claimed harassment from the Sri Lankan Army whilst running the business;

b)    the [appellant] was inconsistent as to whether he was held overnight on 1 April 2013 and who attended the family business;

c)    the [appellant] and his brother decided not to pay the bribe intentionally without taking any precautions or action;

d)    it was fanciful that the [appellant] was so easily able to free himself and run away when his hands were tied behind his back; and

e)    the [appellant’s] departure from Sri Lanka on his own passport appeared somewhat premeditated given that the [appellant] had never travelled outside Sri Lanka previously.

43.    The [Authority] found it far-fetched that the [appellant’s] brothers are still required to travel to Colombo when they have done nothing except allegedly not paying the ransom, and found that that the brothers are not of any ongoing interest to the authorities because of the [appellant].

44.    The [Authority] was not satisfied that, now or in the reasonably foreseeable future, the [appellant] would be targeted or monitored by the Sri Lankan authorities because of his Tamil ethnicity or because he originates from the north of Sri Lanka or a former LTTE controlled area. This finding was made taking into account country information and the [appellant’s] evidence. The finding was also made on the basis of the [appellant’s] lack of profile, and that he has no substantive connection or links to the LTTE other than his brother who the [Authority] found was not of a high profile, completed rehabilitation and was released in 2011. Further, the [Authority] was not satisfied that if the [appellant] were to reopen his business he would experience the level of harassment he may have experienced in the past. Therefore, the [Authority] was not satisfied that the [appellant] faced a real chance of harm on these bases.

45.    The [Authority] was not satisfied that the [appellant] was involved in any way with post-conflict Tamil separatism.

46.    The [Authority] was not satisfied that the [appellant] experienced harm on the basis of his practice of the … faith in the past. Further, it was not satisfied that on his return the [appellant] would attempt to proselytise or convert others. Therefore, the [Authority] was not satisfied that the [appellant] faced a real chance of serious harm on the basis of his religion.

47.    The [Authority] was not satisfied that the [appellant] faced a real chance of harm as a returning Tamil asylum seeker.

48.    Accordingly, the [Authority] concluded that the [appellant] did not meet the requirements of s.36(2)(a) of the Act.

49.    In relation to any Complementary protections, the [Authority] concluded that, for similar reasons, the [appellant] did not face a real risk of significant harm in Sri Lanka.

(Citations omitted.)

7    The appellant sought judicial review on three grounds:

 1.    Jurisdicational [sic] error.

2.    Bias based on conscious or unconscious prejudie [sic] by ignoring revelent [sic] materials.

 3.    Identifying a wrong issue on a wrong question.

8    As noted, the Federal Circuit Court canvassed the grounds and facts and the way in which the Authority dealt with them at some length. A few matters from the Authority’s analysis are worth focussing on as these matters were also the subject of consideration by the Federal Circuit Court.

9    The Authority made the following findings contrary to the evidence of the appellant, even though it accepted many of the matters raised:

(1)    The Authority did not accept that the appellant’s brother was head of the LTTE Communications Department. It rejected this claim on the basis that it was illogical given the appellant’s claim that his brother was an unwilling recruit and was, so soon after being trained, given a position of responsibility when he would have been only 21 years old and had no relevant skills.

(2)    The Authority did not accept that the claimed events of 1 and 3 April 2013 occurred and concluded that the appellant had fabricated these events in their entirety. Those events included the fact that the SLA detained him, physically abused him, held him for ransom, put him in handcuffs and threatened him after his release. This finding was made on the basis that the Authority did not accept that the appellant and his family would knowingly bring attention to themselves and the appellant had provided inconsistent evidence on that topic.

(3)    The Authority found that the appellant’s brothers were not of any ongoing interest to the authorities and explained its reasoning for that conclusion.

(4)    The Authority was not satisfied that, now or in the reasonably foreseeable future, the appellant would be targeted or monitored by Sri Lankan authorities because of his Tamil ethnicity or because he originated from the north of Sri Lanka or a former LTTE-controlled area. Again, it explained its reasons for that conclusion.

(5)    The Authority was also not satisfied that the appellant faced a real risk of harm as a returning Tamil asylum seeker, a finding made on the basis of country information, and the appellant’s lack of profile.

10    The primary judge considered each of the three grounds advanced before it. As to the first ground of jurisdictional error, based on the oral submissions made by the appellant in relation to that ground, his Honour found that the appellant was asking the Federal Circuit Court simply to undertake merits review and on that basis, as the Court could not do so, it did not uphold this ground.

11    As to the second ground of bias, the primary judge noted that the appellant had not provided any evidence that the Authority had closed its mind towards the case and rejected that ground.

12    As to the third ground of identifying a wrong issue or a wrong question, the primary judge concluded there was no indication that the Authority had committed jurisdictional error in this regard, noting that the Authority had:

    accurately set out the appellant’s claims for a protection visa;

    considered those claims against independent country information and the appellant’s evidence;

    made findings which were open on the material; and

    afforded procedural fairness to the appellant.

13    In relation to the bias ground, in particular, the Federal Circuit Court dealt with the question of a letter from a parliamentarian (which the appellant has raised in oral argument before this Court) and noted that it could not be said that the way in which the Authority approached the content of that letter and the weight which it attributed to that letter should be regarded as being illogical or otherwise supporting a finding of jurisdictional error (at [59]-[61]).

14    As all of those grounds were rejected, the Federal Circuit Court dismissed the application for judicial review.

BEFORE THIS COURT

15    The ground of appeal to this Court must be inferred as conveying that the Federal Circuit Court was in error in not concluding that the Authority had committed jurisdictional error. I invited the appellant to expand upon those matters in oral argument.

16    The appellant stressed that he had a lot to say and that the decision of the Federal Circuit Court was not right. In particular, he emphasised that the Federal Circuit Court could not have looked into all aspects of the case properly. He explained that when he left Sri Lanka he did not have documentary evidence of his connection with the LTTE as all that evidence had been captured by the SLA. He indicated that he had only been able to give the Authority the letter from the Member of Parliament, but that the statement in the letter as to the appellant’s likely exposure to harm had not been accepted.

17    The appellant stressed that he had lived in an area controlled by the LTTE. The appellant stressed that he had been with the LTTE for a long time, effectively, all of his adult time in that area and had been under its control. The appellant stressed that he had performed the function of announcing the deaths of certain LTTE people and he stated that Australian authorities had ignored this. It is noted on this issue, the Authority does expressly refer to this factual aspect of his claim and accepted that he may have carried out this task.

18    The appellant submitted that Australian authorities had mostly considered the circumstances of his brothers, rather than his own. He said that the other problem was that his business competitors, out of a desire to damage his business, informed on him to the SLA and complained that he was not selling drugs and cigarettes. The appellant explained to the SLA of his Christian beliefs and his connection with the LTTE, each of which were against drugs and smoking. He referred to the fact that the SLA came to him asking for money and said that the SLA attempted to shoot him.

19    I stressed to the appellant the limited role of this Court, which is focused on the question of how the Federal Circuit Court is said to have erred in its decision; merits review was impermissible at this stage. In relation to this, the appellant particularly stressed the Federal Circuit Court’s failure to take into account the content of the letter from the Member of Parliament to which he had referred.

20    However, the letter from the Member of Parliament is set out in the appeal book papers and was specifically referred to in the decision of the Authority and of the primary judge. The Authority was not prepared to give it weight against the factual background to which it referred and other inconsistencies in the appellant’s account.

21    In my opinion the submission for the Minister, that the findings made by the Authority were open to it and the reasons provided by the Authority show there was an intelligible justification for the findings, is correct. I am unable to discern any jurisdictional error in the Authority’s decision, nor appellable error in the Federal Circuit Court’s decision. Certainly, the approach the primary judge took to the three grounds of review appeal were correct for the reasons given.

CONCLUSION

22    In those circumstances, as no jurisdictional error or error on the part of the Federal Circuit Court has been established, the appeal must be dismissed with costs.

Associate:

Dated:    28 May 2019