BKY15 v Minister for Immigration and Border Protection
[2017] FCA 1426
•17 November 2017
FEDERAL COURT OF AUSTRALIA
BKY15 v Minister for Immigration and Border Protection [2017] FCA 1426
Appeal from: BKY15 v Minister for Immigration & Anor [2017] FCCA 1969 File number: VID 818 of 2017 Judge: NORTH J Date of judgment: 17 November 2017 Date of hearing: 17 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 11 Counsel for the Appellant: The Appellant appeared in person. Counsel for the Respondents: Mr C McDermott Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 818 of 2017 BETWEEN: BKY15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
17 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed with costs fixed at $6,431.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
Before the Court is an appeal from orders made by the Federal Circuit Court on 14 July 2017. The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 22 June 2015. The Tribunal affirmed the decision of a delegate of the first respondent, Minister for Immigration and Border Protection, not to grant the appellant a protection visa.
The appellant is a 34 year old citizen of Sri Lanka of Tamil ethnicity and is a Christian. He claimed fear of persecution in Sri Lanka on the grounds of his impute political opinion as a supporter of the United National Party (UNP) and as having connections with the Liberation Tigers of Tamil Eelam (LTTE), on the ground of his race as a young Tamil male and as a member of a particular social group, namely, returned asylum seekers who left Sri Lanka illegally.
The Tribunal found significant inconsistencies and implausibilities in the appellant’s evidence. For instance, the appellant did not refer in his entry interview to his father’s support of the UNP but did so in his evidence to the Tribunal. The Tribunal rejected the appellant’s explanation for the omission. Another example is that the appellant had travelled to India five times between 2008 and 2012. The Tribunal thought it was implausible that the appellant would return to Sri Lanka each time if he held the claimed fear. After referring to these and a number of other inconsistencies and implausibilities in the appellant’s evidence, the Tribunal made the following fact findings, rejecting the factual basis for his claims:
a. The applicant's father was kidnapped, killed or otherwise disappeared in 2008 or at any other time.
b. The applicant or any member of his family has complained or otherwise reported to the police about the applicant's father's kidnapping, death or disappearance.
c. The applicant, his father, his brother or any other member of the applicant's family are supporters or otherwise connected with the UNP or any other political party in Sri Lanka.
d. The applicant, his father or his brother or any other member of the applicant's family have ever distributed leaflets, put up posters, organised or attended meetings or otherwise provided any support to the UNP or any other political party in Sri Lanka.
e. The applicant and his family have any connections with the LTTE.
f. The applicant, his father or any other member of his family are of any interest to Mr Perera, his associates or any people acting on behalf of Mr Perera or the Sri Lankan government generally.
g.Members of the Sri Lankan security forces and/or associates of, or people acting on behalf of, Mr Perera have come to the applicant's home or the home of the applicant's parents looking for the applicant's father, the applicant or anyone else.
h. The applicant was arrested in a round up or in any other way by the Sri Lankan security forces in 2011 or at any other time after the end of the civil war.
i. The applicant has ever been forced to attend any political demonstrations in support of the Rajapakse regime, or anyone else, by the Sri Lankan security forces or anyone else.
j.The applicant's brother was arrested by the Sri Lankan security forces in January 2015 or any other time and held for two months or any other length of time or the applicant's family had to pay a bribe for his brother's release.
k. Members of the Sri Lankan security forces or associates or people acting on behalf of Mr Perera have ever demanded the payment of money by the applicant or any members of the applicant's family.
l. The applicant or any individuals employed by the applicant have been required to pay bribes to members of the Sri Lankan security forces at any time.
The Tribunal then examined the relevant country information in light of the facts found and concluded that the appellant was not at risk of persecution as a Tamil, as a person perceived to support the LTTE or the UNP, or as a failed asylum seeker who departed Sri Lanka illegally. The Tribunal then considered and rejected the claim that there was a real risk that the appellant would suffer serious harm on return to Sri Lanka, and thus qualify for complementary protection.
On 17 July 2015, the appellant applied to the Federal Circuit Court for a review of the decision of the Tribunal. The grounds of the application were:
(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 Victoria Legal Aid and am waiting for a decision.
As to the stated grounds of appeal, the Federal Circuit Court said:
22. The application was lodged on 28 July 2015 [sic]. There was no suggestion that Victoria Legal Aid had not had sufficient time to consider the applicant’s application. Ground 2 is without substance.
23. The applicant did not provide any particulars of ground 1, nor did he file written submissions. The affidavit in support of the application does not provide any clue as to what defects the applicant might wish to raise.
The appellant was not legally represented before the Federal Circuit Court but raised a number of issues orally through an interpreter. The Federal Circuit Court rejected each of the arguments raised orally, mostly on the grounds that they were misconceived. For instance, the appellant complained that the Tribunal had said that he had used the same sentences over and over again in his evidence, and referred to a number of paragraphs where the Tribunal was said to have made such a finding. Neither of those passages or elsewhere did the Tribunal make such a finding.
Similarly, the appellant claimed that the Tribunal had said that he had embellished his claims in [32]. No such finding was made in that paragraph or elsewhere. As the Federal Circuit Court said, the Tribunal was there concerned with an inconsistency between the appellant’s initial and later claims. The Federal Circuit Court correctly held that there was no error in the Tribunal relying on that inconsistency. A number of other arguments relied upon a challenge to the finding of fact made by the Tribunal. The Federal Circuit Court rightly concluded that those were matters for the Tribunal and that the conclusions were open to it. The Federal Circuit Court concluded that none of the appellant’s oral submissions established that the Tribunal made any jurisdictional errors.
On 25 July 2017, the appellant filed a notice of appeal which contained the following grounds:
1.That there is a jurisdictional error in the Federal Circuit Court decision.
2.The reasons provided by the second respondent to the first respondent in support of the second respondent’s recommendation that the appellant was not a person to whom Australia had protection obligations were neither logical nor rational.
Further grounds of appeal will be provided once I have legal representation.
The appellant appeared without legal representation on the hearing of the appeal, but was assisted by a Tamil interpreter. He explained that he had not written the grounds of appeal and he did not elaborate on those grounds. They were general in their expression and, on their own, no basis for an appeal. The appellant then said that in addition to the grounds, he wanted to say that the Tribunal was wrong not to believe his evidence or his documents. The Court explained that it was not its role to revisit the fact findings of the Tribunal. The appellant then said that he was not able to return to Sri Lanka because he was in fear. He said that he has a family, a wife and child, in Sri Lanka, and if he could have done so, he would have gone back.
Neither the general allegations in the two grounds of appeal, nor the oral submissions of the appellant on the appeal establish any jurisdictional error made by the Tribunal. The appellant has also not been able to show any error in the reasoning of the Federal Circuit Court. Consequently, the appeal must be dismissed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 29 November 2017
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