FEDERAL COURT OF AUSTRALIA

BJW16 v Minister for Home Affairs [2019] FCA 930

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs 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

ANDERSON J:

Introduction and summary

1    The appellant appeals from the decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (delegate) not to grant the appellant a protection visa (Visa).

2    For the reasons below, the appellant’s appeal to this Court is dismissed. The appellant’s first ground of appeal, as outlined below, does not particularise any alleged error of the Tribunal or the Circuit Court and must therefore be rejected. Furthermore, the argument by the appellant that the Tribunal did not properly consider the information he provided for the purposes of his Visa application must also be rejected. In particular, having recognised the clear inconsistencies in the appellant’s evidence, it was open to the Tribunal to reject the appellant’s claim that he had previously been interrogated and tortured in Sri Lanka.

Background

3    The appellant, a citizen of Sri Lanka, arrived on Christmas Island on 15 July 2012 as an illegal maritime arrival. On 6 December 2012, the appellant applied for the Visa. The appellant’s claims were set out in a statement accompanying his Visa application forms. In summary, he claimed that:

(a)    he is a Tamil Hindu from the Puttlam District. His father was a fisherman who was captured by the Criminal Investigation Division (CID) on suspicion of involvement with the Liberation Tamil Tigers of Eelam (LTTE). His father was detained for three years, was then captured by another branch of the CID, and went into hiding;

(b)    in around March 2012, the appellant was taken by the Sri Lankan Army (SLA) to their camp and interrogated and tortured for two to three hours. The SLA wanted him to join them;

(c)    he fears that he will be harmed by the CID and SLA because they will suspect him of being involved with the LTTE; and

(d)    he also fears returning to Sri Lanka because of the “Grease Men”, his Tamil race, his Hindu religion, and because he will be harmed for seeking asylum in Australia.

4    On 22 August 2013, the appellant attended an interview with the delegate. On 18 December 2013, the delegate refused to grant the appellant the Visa.

The Tribunal’s decision

5    On 24 December 2013, the appellant applied to the Refugee Review Tribunal for review of the delegate’s decision. The appellant was represented by his registered migration agent throughout the proceedings in the Tribunal.

6    On 31 March 2014, the appellant, through his representative, provided written submissions to the Tribunal.

7    On 11 February 2016, the appellant appeared before the Tribunal to give evidence and present arguments with the assistance of a Tamil interpreter and his registered migration agent.

8    On 23 February 2016, further written submissions were provided to the Tribunal. The submissions addressed, in part, concerns raised by the Tribunal with the credibility of the appellant’s claims.

9    On 5 May 2016, the Tribunal affirmed the delegate’s decision to refuse to grant the appellant the Visa. The Tribunal’s findings were summarised as follows at [5]-[14] of Circuit Court’s reasons:

5.    The Tribunal considered that the applicant’s claims about the treatment of his father were vague and lacking in detail. The Tribunal also noted various inconsistencies between his evidence given orally at the Tribunal hearing and his written claims in his protection visa application. The Tribunal did not accept the applicant’s claims about his father as credible and, in particular, did not accept that the applicant’s father had a scar as result of the war, or that his father had been detained for three years by the CID.

6.    The Tribunal noted conflicting evidence given by the applicant. As a result, the Tribunal did not accept that applicant had been contacted by the SLA or the CID about his father, or that weapons were found in his home, or that the applicant was taken to an army camp and interrogated and tortured, or that he was asked to join the SLA. The Tribunal did not accept that the applicant’s father was in hiding or that the CID had come to the applicant’s home to look for his father.

7.    The Tribunal accepted that the Sri Lankan authorities may have performed routine checks in relation to the applicant’s whereabouts, but did not accept that there had been any specific inquiries by the authorities since the applicant left Sri Lanka. The Tribunal did not accept the applicant’s claims about weapons having been found in his home. Consequently, the Tribunal did not accept the claim that the applicant’s absence from his home would result in him being suspected by the authorities of any adverse activity.

8.    The Tribunal did not accept that the applicant, or any of this family members, had been of any interest to the authorities in the past and generally found that the applicant’s claims were inconsistent, lacking in detail, and were not credible overall.

9.    The Tribunal considered certain country information. On the basis of that information, the Tribunal did not accept that the applicant faced a real chance of serious harm by reason of his Tamil ethnicity or his membership of a particular social group consisting of young Tamil males. The Tribunal did not accept that the applicant faced a real chance of persecution based on an imputed political opinion arising from his Tamil ethnicity or his age.

10.    The Tribunal considered the applicant’s claim about grease men. The Tribunal noted that the applicant had not had any involvement with grease men previously. The Tribunal did not accept that the applicant might face a real chance of serious harm from grease men if he were to return to Sri Lanka in the future.

11.    The Tribunal considered the issues surrounding the applicant’s illegal departure from Sri Lanka. The Tribunal considered that a member of his family would stand as guarantor for him if he were fined for leaving Sri Lanka illegally. The Tribunal accepted that the applicant might face a short period in remand if he returned to Sri Lanka and accepted that prison conditions might be poor. However, the Tribunal did not consider that anything the applicant might experience in that context would amount to serious harm for a Convention reason. Moreover, the Tribunal found that the Sri Lankan Immigrants and Emigrants Act was a law of general application which was not applied discriminately. Overall, the Tribunal did not accept that the applicant would face a real chance of serious harm due to his illegal departure, or as a failed asylum seeker, or as a Tamil failed asylum seeker.

12.    The Tribunal noted the applicant’s evidence that he had been able to practice his religion freely in Sri Lanka. The Tribunal did not accept that the applicant would face a real chance of serious harm by reason of his Hindu religion. The Tribunal considered the applicant’s claims individually and cumulatively and did not accept that the applicant faced a real chance of persecution for any reason.

13.    Similarly, the Tribunal did not consider that the applicant faced a real chance of significant harm. That was essentially based on the same reasons that the Tribunal had previously given in relation to serious harm. In relation to the prison conditions, the Tribunal did not consider that there was the required intention to cause harm and therefore did not accept that the applicant would face a real chance of significant harm if he were to be imprisoned for a short period of time. As mentioned, the Tribunal considered that the applicant’s family would assist him to pay any fine that might be imposed on him.

14.    The Tribunal considered that any questioning or fine that the applicant might receive would not amount to significant harm as the requirement that the harm be intentionally inflicted was not met. There was nothing before the Tribunal to indicate that the applicant might face a real chance of significant harm on the basis of his religion. All in all, the Tribunal did not accept that the applicant faced a real chance of either significant or serious harm.

The Federal Circuit Court’s decision

10    On 7 June 2016, the appellant filed an application in the Circuit Court for judicial review of the Tribunal’s decision. The appellant relied on the following grounds of review:

(1)    The Minister erred in law by taking into consideration facts not relevant to the matter in making the decision.

(2)    The Minister erred in law by not taking into consideration relevant facts in making the decision.

(3)    The Minister erred in not taking into consideration relevant Country information in making the decision.

11    On 13 November 2018, the matter came before the Circuit Court for hearing. The appellant appeared in person without legal representation. The Circuit Court delivered an ex tempore judgment the same day dismissing the application.

12    The Circuit Court later provided written reasons for its decision dismissing the appellant’s judicial review application in that Court: BJW16 v Minister for Immigration & Anor [2018] FCCA 3588 (FCCA Reasons). The Circuit Court recorded that, as explained to the appellant at the hearing in that Court, the appellant’s grounds of review, as outlined above at [10], should be recast to allege error against the Tribunal, not the Minister.

13    The Circuit Court held that there was no substance to the first ground of review: FCCA Reasons at [16]-[19]. In particular, the Circuit Court found that the Tribunal had adequately considered the issue concerning the appellant being found with weapons. The Circuit Court recognised that the issues regarding the alleged weapons were matters raised by the appellant and potentially supported his claims for protection. However, the Circuit Court was unable to discern any error on the part of the Tribunal in this regard.

14    In relation to the second ground of review, the Circuit Court noted that the appellant had said nothing when asked about this ground at the hearing, and was unable to discern any relevant fact that the Tribunal had failed to take into account: FCCA Reasons at [21].

15    In relation to the third ground of review, the Circuit Court again noted that the appellant again did not having anything to say in respect of the ground at the hearing. The Circuit Court found that it was clear from the Tribunal’s reasons that the Tribunal did consider relevant country information, including that which was provided by the appellant’s representative. The Circuit Court was unable to see any basis on which it could be said that the Tribunal failed to consider relevant country information: FCCA Reasons at [23].

16    The Circuit Court otherwise considered the Tribunal’s reasons and relevant parts of the court book, but could not discern any jurisdictional error in the Tribunal’s decision or decision-making process: FCCA Reasons at [26].

Appeal to this Court

17    On 27 November 2018, the appellant filed a notice of appeal in this Court appealing the decision of the Federal Circuit Court. The appellant’s notice of appeal relies upon the following grounds of appeal:

1.    Applicant thinks the order, which is based on the application has a question of law and it should be investigated.

2.    Applicant has provided lot of information and supporting documents for his protection Visa application. Applicant believes this information was not considered properly and not granted a fair order.

18    The appeal was heard on 5 June 2019. The appellant appeared in person with the aid of an interpreter.

19    At the hearing, the appellant told me that he felt the Tribunal did not consider his case properly. In particular, the appellant said the Tribunal “did not believe [his] story that [he] was in a camp”. However, the appellant could not otherwise point to anything the Tribunal got wrong or failed to take into account. When I asked the appellant what he saw as the error in the Circuit Court’s decision, the appellant said that the Circuit Court did not believe his story. He did not wish to add anything to this complaint about the Circuit Court’s decision. The appellant finally told me that he was scared to return to Sri Lanka.

Consideration

Ground of appeal (1) – Question of law that should be investigated

20    Interpreted in its most favourable light, the appellant’s first ground of appeal appears to contend that that the Circuit Court’s order involves an error of law. Even if I accept that interpretation, the first ground of appeal does not identify the particular error by the Tribunal or the Circuit Court. It invites this Court to itself investigate the Circuit Court’s decision. Farrell J was faced with a similar situation in EJB17 v Minister for Immigration & Border Protection [2019] FCA 742. Her Honour expressed the following at [12] of that decision:

While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration & Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs.

21    The same analysis applies in this case in respect of the first ground of appeal. The absence of particularity in the identification of any error said to have been committed by the Tribunal or Circuit Court means that this ground of appeal must be dismissed.

Ground of appeal (2) – Information provided in Visa application was not properly considered

New ground of review?

22    The Minister submitted that the appellant requires leave of the Court to raise this second ground, being a new ground of review which was not canvassed or raised before the Circuit Court: see Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at [19], quoting VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48].

23    It should be recalled, however, that the appellant was not legally represented in the Circuit Court or this Court: see NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [165]. Additionally and importantly, it is apparent from the grounds of review advanced in the Circuit Court—all “considerations” grounds—and the analysis set out in Circuit Court’s reasons that, in broad terms, the appellant did in substance argue in that Court that the information he provided to the Tribunal was not considered properly and the order of the Tribunal was not fair. For this reason, I do not accept that the appellant raised a new ground of review against the decision of the Tribunal. The appellant therefore does not require leave to raise this second ground of appeal.

The appellant’s information was adequately considered

24    The appellant’s second ground of appeal fails to identify what information the appellant alleges was not considered properly by the Tribunal and why the appellant contends that he was not granted a “fair order”. The sole particular advanced at the hearing was that the Tribunal “did not believe [his] story that [he] was in a camp”, which I understand to be a reference to the interrogation and torture the appellant said that he suffered in March 2012, as briefly outlined above at [3].

25    The dearth of particularity as to what information the appellant claims has not been properly considered by the Tribunal means that this Court needs to carefully review the Tribunal’s reasons and determine whether the findings made by the Tribunal were open to it in all the circumstances. Indeed, this was the task that the Circuit Court undertook when it was itself faced with grounds of review devoid of particularity.

26    As recounted above, the Circuit Court considered each of the issues that were relied upon by the Tribunal in arriving at its decision. Having considered the Tribunal’s reasons and the court book, the Circuit Court found that there was no discernible jurisdictional error in the Tribunal’s decision or decision making process. I have also reviewed the Tribunal’s reasons and have not been able to detect any basis to conclude that the findings which were made by the Tribunal were not otherwise reasonably open for the Tribunal to make. It is clear from the Tribunal’s reasons that a series of factual inconsistencies and implausibilities advanced by the appellant undermined his prospects of satisfying a criterion for obtaining a Visa.

27    In particular, it was open to the Tribunal to reject the appellant’s evidence that he had been detained by the SLA at a camp and interrogated and tortured for about 2 or 3 hours. The basis for that rejection was set out at [24] of the Tribunal’s reasons:

… in relation to the applicant's claims in regard to his contact with the authorities, the Tribunal notes the applicant claimed in the hearing that he was questioned at home at the time the weapons were allegedly found, about his father and the weapons. The applicant also claimed in the hearing that he was harmed at the time he was questioned, however when asked how he was harmed he stated that they threatened him. In response to the Tribunal's question as to how he was threatened, the applicant stated that they spoke to him in an aggressive way. In contrast to the applicant's evidence in the hearing, the Tribunal notes the applicant's claims in his statutory declaration attached to his protection visa application that he was taken by the [SLA] into their camp and interrogated and tortured for about 2 or 3 hours and beaten because the army wanted him to join them. Further, according to the delegate's decision, a copy of which was provided to the Tribunal, the applicant's evidence was that when the [SLA] came to see his father at home after his release from detention they attempted to recruit him and he told them he was not interested in their offer and they left. The Tribunal finds that the applicant has provided conflicting evidence regarding his contact with the army and/or CID and as such, it is further satisfied that the applicant had no contact with either the army or CID prior to his departure from Sri Lanka either because of any interest they allegedly had with his father or because they wanted to recruit him. The Tribunal notes the applicant's evidence that his statement was taken a long time ago so he could have missed a few things or forgotten certain things and the adviser's submission that the significant period of time between the applicant making his claims and the hearing could be the reason why the applicant could not remember some events. The Tribunal does not accept given the seriousness of the applicant's initial claim that he was taken to an army camp, interrogated and tortured and the significance of these alleged events to the applicant's claims for protection, that the applicant would have forgotten that this had occurred. The Tribunal therefore does not accept that the applicant was either questioned by the CID or army about his father or any weapons that were allegedly found at his home or that he was taken to the army camp, interrogated and tortured and asked to join the army or that he was asked to join the army when they came to his home.

28    Having recognised the clear inconsistencies in the appellant’s evidence in his Visa application and that provided to the Tribunal, it was open to the Tribunal to reject the appellant’s claim that he had been interrogated and tortured. The appellant’s second ground of appeal must accordingly be rejected.

Conclusion and orders

29    I am satisfied that there was no jurisdictional error on the part of the Tribunal. Nor is there any appealable error on the part of the Circuit Court. The appeal is accordingly dismissed. The appellant is to pay the Minister’s costs of and incidental to the appeal.

Associate:

Dated:        8 January 2020