BLI15 v Minister for Immigration and Border Protection
[2017] FCA 1284
•3 November 2017
FEDERAL COURT OF AUSTRALIA
BLI15 v Minister for Immigration and Border Protection [2017] FCA 1284
Appeal from: BLI15 v Minister for Immigration & Anor [2017] FCCA 620 File number(s): WAD 279 of 2017 Judge(s): SIOPIS J Date of judgment: 3 November 2017 Date of hearing: 31 October 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Ms E Tattersall Solicitor for the First Respondent: Sparke Helmore ORDERS
WAD 279 of 2017 BETWEEN: BLI15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
3 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appellant’s appeal is dismissed.
2.The appellant is to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an appeal from orders of the Federal Circuit Court of Australia made on 24 May 2017, dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal).
The appellant is a 38 year old male of Tamil ethnicity and a citizen of Sri Lanka.
The appellant arrived in Australia in July 2012 as an unauthorised maritime arrival. On 2 January 2013, the appellant applied for a protection visa, claiming to fear harm if returned to Sri Lanka due to his Tamil ethnicity.
On 17 February 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a protection visa.The appellant sought a review of the refusal by the Tribunal. Before the Tribunal, the appellant also claimed to fear harm if returned to Sri Lanka due to being imputed with a political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE) and on the basis of being a failed asylum seeker and an illegal departee from Sri Lanka. On 26 June 2015, the Tribunal affirmed the decision of the delegate.
As mentioned, the Federal Circuit Court dismissed the appellant’s application for judicial review of the Tribunal decision, and the appellant now appeals to this Court.
THE TRIBUNAL
The Tribunal hearing took place on 24 February 2015. The appellant was represented by a registered migration agent at the hearing. The appellant also appeared to give evidence and make submissions with the assistance of an interpreter in the Tamil and English languages.
In summary, the appellant said that he had lived and worked in Saudi Arabia from 2003 until the end of the civil conflict in Sri Lanka in 2009, during which time the appellant’s family’s farm had been rented to a neighbour. In May 2012, the appellant said, he had had a dispute with that neighbour regarding the rental of the land, which had turned into a physical altercation. Thereafter, the appellant said, his neighbour told the CID that the appellant was a member of the LTTE. The appellant said that the same day the CID arrested him and held him for two days.
The appellant stated that in June 2012, an SLA informant, or a member of the SLA referred to as a “grease man”, went missing and the appellant was arrested by the CID on suspicion of having some involvement. The appellant said that he was in custody for about a week along with a number of other Tamil males, during which time he was interrogated and tortured. The appellant claimed that he was able to escape and then sought passage to Australia.
The Tribunal accepted certain aspects of the appellant’s evidence as plausible and credible, however, the Tribunal found the appellant’s “overall testimony thoroughly unconvincing”; describing parts of the appellant’s evidence as “unreliable, exaggerated, or fabricated for the purpose of strengthening his protection claims” (at [17]). The Tribunal rejected important parts of the appellant’s claims and evidence including the appellant’s claim of having been arrested and detained by the CID in May and June 2012 and also, more generally, his stated reasons for having left Sri Lanka for Australia.
The Tribunal accepted that, as the appellant had departed Sri Lanka illegally, he would be charged and held on remand for a few days prior to bail being granted if he returned to Sri Lanka. The Tribunal went on to say that having regard to the country information, which stated that a sentence of imprisonment was seldom imposed on an illegal departee, and the appellant’s circumstances, the appellant would then be fined an amount of around Rs50,000. The Tribunal found that the treatment the appellant would encounter under the Immigrants & Emigrants Act did not give rise to a real risk of significant harm.
The Tribunal accepted that the prison conditions in Sri Lanka were generally poor and overcrowded and that this may cause the appellant some discomfort. However, the Tribunal did not accept that the appellant would be imputed with any opinion in support of the LTTE and treated any differently from any other Tamil returnee and persecuted on that, or any other, basis.
Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations pursuant to the refugee or complementary protection provisions of the Migration Act 1958 (Cth).
THE FEDERAL CIRCUIT COURT
The appellant applied to the Federal Circuit Court for judicial review of the Tribunal decision. The appellant was represented in relation to the review, which was heard on 22 March 2017.
The appellant’s application for judicial review contained three grounds, however, the appellant did not press the second ground. Grounds one and three, which were relied on, mirror, mutatis mutandis, the grounds of appeal set out below at [20].
As to review ground one, the appellant contended that the Tribunal had made a jurisdictional error because the appellant may nonetheless face a real risk of serious harm imposed by a prison sentence as an illegal departee, even if such harm is not likely to occur or the prison sentence is seldom enforced. The primary judge found that the Tribunal had made a specific finding that the appellant would be detained, granted bail and fined. The primary judge referred to the Tribunal’s finding at [89]:
…Having regard to the applicant’s circumstances and to the country information, the Tribunal has found the applicant will be granted bail and subsequently fined. The Tribunal finds that country information indicates the applicant is likely to be fined an amount of around Rs 50,000. Having regard to all of the evidence and country information, the Tribunal finds the treatment of the applicant from arrival back in Sri Lanka, through to being charged, detained, bailed and ultimately fined under the I&E Act [Immigrants & Emigrants Act] does not give rise to a real risk of significant harm.
As to review ground three, the appellant contended that the Tribunal’s findings in relation to the appellant’s credibility gave rise to jurisdictional error on the basis that the adverse credibility findings were unsupported by clear and cogent evidence. The primary judge viewed that ground as a contention that the Tribunal had made findings with “no evidence” or that the Tribunal’s decision was illogical or irrational.
The primary judge observed that it was well established that the Tribunal was not required to accept uncritically any or all of the claims made by an applicant, nor did the Tribunal need to possess rebutting evidence to find that a particular assertion was not made out.
The primary judge found that the Tribunal’s findings were based on its assessment of the appellant’s entry interview, the statement of claims in support of the application, the delegate’s decision, the submissions provided to the Tribunal and the oral evidence given at the hearing. Rather than there being “no evidence” to support its findings, the primary judge held that the Tribunal’s findings were open to it on the evidence available and it was not a case where “no rational or logical decision maker could arrive at [the finding] on the same evidence”.
Accordingly, the primary judge dismissed the application for judicial review on the grounds that no jurisdictional error was apparent in the Tribunal decision.
THE APPEAL
The appellant’s notice of appeal lodged on 13 June 2017 contained two grounds of appeal, set out below. Other than the reference to error by the primary judge in the opening words of each appeal ground, the grounds and particulars are identical to review grounds one and three advanced before the primary judge:
1.The primary judge erred by failing to find that the Second Respondent erred in law by misapplying the test of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Appellant being removed from Australia to a receiving country, there is a real risk he will suffer significant harm.
Particulars
The Second Respondent accepted:
a)that the Sri Lankan authorities continue to perpetrate human rights abuses and that Tamils are more likely to be the victims (at [27]);
b)that the UNHCR and DFAT may not monitor court processes or follow up on what happens to persons charged under the legislation (at [73]); and
c)that prison conditions in Sri Lanka are poor and overcrowded and that the Appellant may suffer discomfort whilst in prison (at [90]).
The Second Respondent made a finding that “the Applicant is likely to be fined” under section 45(1)(o) of the Immigration & Emigration Act (Sri Lanka) and that his treatment “from arrival back in Sri Lanka, through to being charged, detained, bailed and ultimately fined under the I & E Act does not give rise to a real risk of significant harm” (at [89]).
In doing so, the Second Respondent made an error of law. The Appellant may still face a ‘real risk’ of significant harm imposed by a custodial sentence even if such harm is not ‘likely’ to occur.
2.The primary judge erred by failing to find that the Second Respondent erred by disposing of the Appellant’s claim that he had [sic] detained by the Sri Lankan authorities by merely making an adverse credibility finding without any fact finding supported by clear and cogent evidence.
Particulars
The Second Respondent (at [49]) did “not accept as plausible” that the Appellant would fail to mention the event in his initial entry interview, but that bare assertion standing alone is not sufficient logical grounds for finding that the event did not occur.
There was no proper basis for disposing of the Appellant’s evidence in support of his claim that he was still of interest to the authorities.
During the hearing, I gave the appellant an opportunity to identify the respects in which he alleged that the primary judge had erred, in rejecting the grounds of review which were in identical terms to the grounds of appeal. The appellant was not able to advance any arguments in support of his contention. The appellant’s arguments focused exclusively on the merits of his application for a protection visa.
In my view, the primary judge undertook a thorough examination of the contentions made by the appellant’s legal representative on behalf of the appellant before the Federal Circuit Court. As mentioned, the contentions made before the primary judge were, mutatis mutandis, in identical terms to the grounds of appeal. In my view, the primary judge did not, for the reasons which he gave, err in rejecting both grounds of review.
As to review ground one, the primary judge did not err in finding that the Tribunal had made a finding of fact based on the country information and the appellant’s circumstances, that he would not be sentenced to a term of imprisonment but would be fined. That was a finding which was in the circumstances open to the Tribunal to make. That finding was also a sufficient basis upon which to find that there was no real risk that the appellant would suffer significant harm if returned to Sri Lanka.
As to review ground three, the primary judge found that it was not necessary for the Tribunal uncritically to accept the claims made by the appellant nor for it to possess rebutting evidence in order to reject assertions made by the appellant. The primary judge went on to find that it was open on the material before the Tribunal, and the credibility findings, to reject the appellant’s version that he had been detained by the Sri Lankan authorities on suspicion of having killed or abducted a SLA informant or “grease man”. In my view, the primary judge did not err in rejecting this ground of review. As the primary judge found, the complaints made in this ground of review that the Tribunal’s reasoning was illogical or irrational, were simply a means of expressing disagreement with the findings of the Tribunal.
The appeal is dismissed.
The appellant is to pay the first respondent’s costs.
I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 3 November 2017
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