FEDERAL COURT OF AUSTRALIA

BDE16 v Minister for Immigration and Border Protection [2019] FCA 816

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 14 September 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court delivered on 24 August 2018: see BDE16 v Minister for Immigration & Anor [2018] FCCA 2175. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the Minister, the first respondent, to refuse to grant the appellant a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

FACTUAL CONTEXT

2    The appellant is a Sri Lankan citizen who arrived in Australia on 13 August 2012 as an irregular maritime arrival. The appellant applied for a protection (class XA) visa on 12 April 2013. The appellant attended an interview with the delegate on 30 October 2013 and, through his agent, provided further information.

3    The claims made by the appellant (then described as the applicant) were summarised in the primary judge’s reasons (at [8]):

a)    he is a Tamil male of Christian faith from [the] Jaffna District in Sri Lanka. He fled Sri Lanka because he feared the Criminal Investigation Department (“the CID”) and the Sri Lankan army who were allegedly harassing and threatening him because of his suspected involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”) due to his ethnicity. The applicant said he was regularly questioned by these organisations, including in relation to his brother-in-law who had previously fled Sri Lanka.

b)    on one occasion in 2011, the applicant claimed that he was hit with a rifle by a member of the CID who was enquiring about the applicant’s brother-in-law. The CID allegedly threatened to kill him. The applicant stated he then left Jaffna and went to his mother-in-law’s house in Batticaloa, where he remained [in] hiding for two to three months. When he returned, the applicant claimed that the CID required him to report to the local army camp three to four times a week, which he did between October 2011 and July 2012 at which point he left Sri Lanka for Australia.

(Footnotes omitted)

4    On 19 December 2013, the Minister’s delegate refused the appellant’s application. The delegate accepted that the appellant was a Sri Lankan Christian Tamil from the Jaffna District. Relying on country information, the delegate found, however, that the appellant would not be persecuted in Sri Lanka as a result of his Tamil ethnicity and did not accept that the appellant would be persecuted because of an imputed political opinion in support of the LTTE as the appellant did not fit any of the “potential risk” profiles outlined in the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka. The delegate also did not accept that the appellant would face a real chance of serious harm from having sought asylum in Australia.

GROUNDS OF APPEAL

5    The appellant’s notice of appeal filed in this Court on 14 September 2018 raised the following grounds of appeal:

1.    The court below erred in not finding that:

a. The tribunal’s decision was affected by an error of law; and

   b. That the tribunal denied procedural fairness.

6    It should be noted that these grounds are markedly similar to the grounds of review which the appellant raised before the Federal Circuit Court (see at [16] below).

THE TRIBUNAL’S DECISION

7    In support of his application for merits review, the appellant’s agent provided the Refugee Review Tribunal (as the Tribunal then was) with a set of written submissions which raised the following additional new claims: that the Sri Lankan authorities had visited the appellant’s family home a number of times, including after he had left Sri Lanka, and had informed a family member that he must report to the authorities upon his return to Sri Lanka; that he was forced to dig bunkers for the LTTE; and that he was injured in a bomb shell blast, leaving a scar on his leg, that, if discovered by the authorities, would expose him to harm, as they would assume he was a member of the LTTE.

8    On 15 April 2015, the appellant attended an interview with the Tribunal member.

9    On 23 April 2016, the Tribunal affirmed the delegate’s decision not to grant the visa. The Tribunal accepted that the appellant was questioned, hit in the stomach with a rifle and threatened that he would be taken to army headquarters and that he may be shot. However, the Tribunal observed that country information indicated that people suspected of LTTE involvement were held in rehabilitation camps but that the appellant was released. It found that there were inconsistencies in the appellant’s evidence, specifically with respect to the period during which he reported to the army camp and the frequency at which he did so. The Tribunal did not accept the appellant’s explanation that his written statement provided a full description of his reporting to the army camp whereas his oral evidence was simply a summary.

10    The Tribunal also did not accept that the appellant was of any interest to the authorities; or that the authorities went to his house every night after he was released from the army camp to interrogate him; or that they continued to ask his wife about his absence. The Tribunal described his claim “of ongoing interest by the authorities” as “an embellishment to strengthen a claim for protection”.

11    Having considered the country information available to it, the Tribunal found that the appellant did not fall within any of the categories of persons identified by the UNHCR as those who would be at a real risk of persecution or serious harm upon return to Sri Lanka.

12    The Tribunal did not accept any of the appellant’s new claims outlined at [7] above and found the appellant’s reasons for not raising these claims sooner to be implausible.

13    The Tribunal was not satisfied that the appellant would be of interest to the authorities due to “his Tamil ethnicity or an imputed political opinion connecting him to the LTTE”.

14    As for the appellant’s claim that he feared harm as a failed asylum seeker, the Tribunal accepted that the appellant will likely face questioning at the airport upon his return to Sri Lanka and that he may be charged and convicted under Sri Lankan departure laws. Nonetheless, the Tribunal did not accept that the appellant would face serious harm as a result of his being a failed asylum seeker.

15    Finally, while the appellant did not raise any specific claims regarding his religious beliefs, the Tribunal considered this matter and found that, while the appellant “may suffer low level discrimination on the basis of his Catholic faith”, having regard to country information, it did not accept that this would rise “to the level of serious or significant harm”.

FEDERAL CIRCUIT COURT OF AUSTRALIA’S DECISION

16    The appellant sought judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia. In his application, he raised the following grounds of review:

1.    The decision of the Tribunal:

(a)    is affected by an error of law; and

(b)    denied the applicant procedural fairness.

2.    I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

17    The application was heard on 23 March 2018. The appellant did not file any written submissions.

18    The primary judge found that the Tribunal’s decision was not affected by any jurisdictional error. Her Honour also found that the appellant had a sufficient opportunity to discuss his claims and present his evidence before the Tribunal and it had therefore complied with its procedural fairness requirements. With respect to the second ground of review, the primary judge found that it did not particularise nor disclose any jurisdictional error.

CONTENTIONS

19    The appellant did not file any written submissions prior to the hearing of this appeal. With the assistance of an interpreter, he did make some oral submissions at the hearing. With respect to ground of appeal 1(a), the appellant claimed that the Tribunal did not properly process his application and did not properly investigate it. In terms of ground of appeal 1(b), he claimed that the Tribunal did not properly consider the evidence he had given and the claims he had outlined in his application. On this aspect, he clarified that he did not intend to say that the Tribunal did not treat him fairly.

20    In his written submissions, the Minister first contended that, since the appellant had not particularised his grounds of appeal, or attempted to supplement those grounds with any written submissions, the appeal should be dismissed on that basis alone (citing WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60], affirmed on appeal in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 and WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

21    With respect to ground of appeal 1(a), the Minister contended that the Federal Circuit Court of Australia was correct in finding that the Tribunal did not commit any error of law. Specifically, the Minister noted that the Tribunal considered each of the appellant’s claims in detail and found that the appellant would not be of any particular interest to the authorities and that his past experiences were not unusual for Tamils during the civil war. The Minister further noted that the inconsistencies in the appellant’s claims, as identified by the Tribunal, undermined his claims.

22    Further, the Minister claimed that the Tribunal had largely rejected the appellant’s claims on the basis of country information which indicated that he did not fall within any of the categories of persons at risk of persecution for imputed support of the LTTE and, as such, the Tribunal had not committed any jurisdictional error.

23    In relation to ground 1(b), the Minister contended that such an allegation must be considered by reference to s 422B of the Act. The Minister submitted that the appellant was properly invited to and attended a hearing before the Tribunal and had the assistance of a representative who attended the hearing and filed submissions on his behalf. Finally, the Minister noted that the Tribunal’s decision record also illustrated that the appellant’s claims were canvassed with him and he was given the opportunity to freely discuss them. Accordingly, the Minister contended that the primary judge was correct in finding that there was no basis on which the appellant could argue that he was denied procedural fairness.

CONSIDERATION

24    To begin with, it is to be noted that the appellant has not provided any particulars of the errors that he claims exist in the primary judgment. This lack of particulars makes it very difficult to discern the precise nature of the appellant’s complaints as raised by his notice of appeal. This deficiency is compounded in the appellant’s grounds of appeal before this Court, in that, as has been mentioned above, they are almost identical to the grounds of review raised before the primary judge. Consequently, both sets of grounds allege errors on the part of the Tribunal. Neither attempts to identify any appellable error in the primary judgment. However that may be of little moment because, even if it were to be assumed that the grounds before this Court are intended to allege that the primary judge erred in not detecting and addressing those errors in the Tribunal’s decision, having carefully reviewed the primary judge’s reasons, I consider that the Minister is correct in his submissions that no such error exists, much less one involving jurisdictional error. Accordingly, this appeal must be dismissed with costs. The orders will be:

1.    The notice of appeal filed 14 September 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal to be taxed failing agreement.

Associate:    

Dated:    31 May 2019