BFM15 v Minister for Immigration

[2017] FCCA 2573

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFM15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2573

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – applicant a Tamil Muslim of the Tabligh Sunni sect – principal claims found to be implausible – SZTAL point – alternative basis for finding of no significant harm while being held on remand.

Legislation:
Migration Act 1958, s.36(2A)

Cases cited:
SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69

Applicant: BFM15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1429 of 2015

Judgment of: Judge Riley

Hearing date: 22 June 2017

Date of last submission: 22 June 2017

Delivered at: Melbourne

Delivered on: 22 June 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Ned Rogers

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 24 June 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG1429 of 2015

BFM15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to review a decision of Refugee Review Tribunal.  The applicant is a citizen of Sri Lanka.  He arrived in Australia on 17 February 2012 and applied for a protection visa on 28 May 2012. 

2. A delegate of the Minister for Immigration and Border Protection refused that application on 13 August 2012. 

3. The applicant applied to the Tribunal on 17 September 2012 for review of the delegate’s decision.  The applicant attended three hearings before the Tribunal.  On 3 July 2013, the Tribunal affirmed the delegate’s decision. 

4. The applicant then applied to this court for review of the Tribunal’s decision.  The parties consented to the matter being remitted to the Tribunal for re-hearing on the basis that the Tribunal had not considered all aspects of the applicant’s claims relating to his illegal departure from Sri Lanka. 

5. The applicant appeared before a reconstituted Tribunal on 27 May 2014.  On 26 May 2015, the Tribunal again affirmed the delegate’s decision. 

6. The applicant claimed that:

   a)he was a Tamil from Central Province;

   b)he was born on 24 August 1993;

   c)he belonged to the Tabligh Sunni Muslim sect (“Tabligh sect”);

   d)he had a role with the Young Muslim Association from the time he was in year 9 at school;

   e)his life was at risk from a rival Sunni sect, known as Jamaat-i-Islamiya;

   f)he was at risk of harm from government and para-military organisations, who might suspect him as a young Tamil man of having connections to the Liberation Tigers of Tamil Eelam;

   g)he had been threatened and assaulted by Jamaat-i-Islamiya;

   h)he feared harm on the basis that he had left Sri Lanka illegally and would return as a failed asylum seeker;

   i)he would be interrogated and charged with offences under the Immigrants and Emigrants Act 1949 (Sri Lanka) and sentenced to imprisonment for over a year; and

   j)he faced harm from Buddhist fundamentalist groups.

7. The Tribunal accepted that the applicant was a Tamil Muslim from Central Province.  The Tribunal accepted that the applicant was a member of the Tablighi sect and had been a youth leader of that sect.

8. However, the Tribunal considered that significant aspects of the applicant’s evidence were implausible and inconsistent.  Consequently, the Tribunal did not accept the applicant’s principal claims to have been assaulted and threatened by members of Jamaat-i-Islamiya.  The Tribunal did not accept that the applicant had been harmed because of his involvement with the Tablighi sect.  The Tribunal also found that none of the applicant’s family had been targeted or harmed by Sinhalese Buddhists.  The Tribunal noted that the applicant was not aware of any instances of harm befalling members of the Tablighi sect in his home region as a result of actions of the Jamaat-i-Islamiya.

9. The Tribunal considered relevant country information.  It noted that there were reports of some unrest between Buddhists and Muslims in Central Province.  However, the Tribunal found at paragraph 81 of its reasons for decision that the risk of Muslims in Sri Lanka suffering serious harm in the reasonably foreseeable future because of their religion was remote.

10. The Tribunal accepted that Tamils in Sri Lanka face some degree of harassment and discrimination.  However, the Tribunal did not accept that the harassment and discrimination rose to the level of serious harm.  The Tribunal did not accept that the applicant would be perceived as having an adverse political opinion based on being a Tamil, a young Tamil male, or a young Tamil male returning as a failed asylum seeker.

11. The Tribunal accepted that the applicant might be detained and questioned as a failed asylum seeker, who had illegally departed Sri Lanka.  However, the Tribunal considered that the relevant laws were not discriminatory and would be applied without discrimination.  The Tribunal considered that the applicant might be held on remand for a brief period, but he would then be granted bail.  The Tribunal considered that any questioning and brief detention of the applicant would not constitute persecution.  The Tribunal considered that the ultimate penalty faced by the applicant would be a fine, rather than imprisonment, and that he would be able to pay the fine.

12. The Tribunal considered that the applicant might remain in prison on remand for only a few days. The Tribunal at paragraph 116 of its reasons for decision considered that the poor prison conditions in Sri Lanka would not result in the applicant suffering significant harm as defined in the Migration Act 1958 s.36(2A). In the alternative, the Tribunal considered that any harm the applicant would experience in a Sri Lankan prison would not have been intended by the Sri Lankan authorities.

13. Consequently, the Tribunal affirmed the delegate’s decision.

14. The application to this court appears to have been prepared without the benefit of legal assistance.  The grounds of the application are as follows:

    1.The Refugee Review Tribunal did not afford me procedural fairness.

    2.The Refugee Review Tribunal applied the wrong legal test.

15. The application itself did not provide any particulars of the grounds.  The applicant did not file written submissions.  When asked by the court what he wished to say about the grounds, the applicant said he had nothing to say.  When asked what he wished to say about any mistake the Tribunal might have made, the applicant again said that he did not wish to say anything to the court. 

16. The Minister addressed the court on the application of the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. The High Court’s decision on the appeal from the Full Court of the Federal Court is presently reserved. However, the Minister submitted that there was no need for the court in this particular case to await the outcome of the High Court’s decision. That was said to be because there was an alternative basis for the Tribunal’s decision, which did not depend upon the outcome of SZTAL.

17. As mentioned, in paragraph 116 of its reasons for decision, the Tribunal found that the applicant being held in remand for a few days would not amount to significant harm as defined. Alternatively, in paragraph 117 of its reasons for decision, the Tribunal found that the Sri Lankan authorities would not intend to cause the applicant significant harm. I accept the Minister’s submissions on this point. That is, I accept that there is an alternative basis for the Tribunal’s decision in this case and, therefore, the outcome of the High Court’s decision in SZTAL will not be determinative. 

18. Having read the Tribunal’s decision and parts of the court book, I have been unable to discern any jurisdictional error made by the Tribunal in this case.  It seems to me that the Tribunal afforded the applicant procedural fairness.  He was invited to a hearing, which he attended.  The issues were well and truly clear, by reason of the delegate’s decision and the first Tribunal’s decision.  It seems to me that the Tribunal correctly applied the law.  The Tribunal appears to have properly understood the relevant legal tests and properly applied them.  The Tribunal appears to have considered all of the applicant’s claims and does not appear to have taken into account any irrelevant considerations.  It also seems to me that the findings of the Tribunal were reasonably open to it. 

19. I have been unable to identify any jurisdictional error in the Tribunal’s decision or in its conduct of the proceeding.  Consequently, the application filed on 1 July 2015 will be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     24 October 2017