BRC16 v Minister for Home Affairs
[2022] FCA 303
•30 March 2022
FEDERAL COURT OF AUSTRALIA
BRC16 v Minister for Home Affairs [2022] FCA 303
Appeal from: BRC16 v Minister for Home Affairs & Anor [2019] FCCA 1835 File number: VID 811 of 2019 Judgment of: BROMBERG J Date of judgment: 30 March 2022 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – where the appellant is unrepresented – whether a decision of the Administrative Appeals Tribunal was affected by illogicality or irrationality – whether the Tribunal misunderstood country information – whether the Tribunal failed to consider an integer of the appellant’s claim – appeal dismissed Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 18 Date of hearing: 25 March 2022 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Counsel for the First Respondent: Mr V Murano Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 811 of 2019 BETWEEN: BRC16
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
30 MARCH 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the First Respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The appellant appeals from the orders of the Federal Circuit Court of Australia made in BRC16 v Minister for Home Affairs & Anor [2019] FCCA 1835. The appellant was represented before the Federal Circuit Court and when he filed his notice of appeal to this Court. However, shortly after filing the appeal his solicitors filed a notice of ceasing to act. Since then the appellant has been unrepresented and has filed no document in support of his appeal to this Court.
The appellant is a Tamil man who arrived in Australia by boat in May 2012. In 1990, he left Sri Lanka and lived in a refugee camp in India before coming to Australia. His wife and child continue to reside in India while other members of his family are in Sri Lanka.
In August 2012, the appellant applied for a protection visa. The basis of his claim for a protection visa was that before departing Sri Lanka his father was detained and tortured due to a perceived association with the Liberation Tigers of Tamil Eelam (LTTE). The appellant’s uncle had also been killed by the Sri Lankan army (SLA). The appellant said that in 2009 his father and sister were detained by the SLA after being relocated to a refugee camp run by the SLA. They had been deemed supporters of the LTTE because of their place of origin. During that time his sister was sexually abused and brutalised by the SLA. After release from the refugee camp, the appellant believes his sister continued to be subject to barbaric acts by the SLA. In 2010, his parents sent his sister to Saudi Arabia where she remains.
In October 2012, a delegate of the first respondent (Minister) refused the application. In November 2012, the appellant applied to the now defunct Refugee Review Tribunal for review of the decision to refuse him a protection visa. The appellant made submissions which further elaborated on his initial claim for protection. In October 2013, the Refugee Review Tribunal affirmed the decision of the delegate on review.
The appellant applied for judicial review of the decision of the Refugee Review Tribunal. In May 2014, the Federal Circuit Court made orders by consent remitting the matter to the second respondent (Tribunal) for reconsideration. In June 2016, the Tribunal again affirmed the decision of the delegate.
The appellant again sought judicial review of the Tribunal’s decision. On 3 July 2019, the Federal Circuit Court dismissed the appellant’s application for review. The appellant now appeals that decision to this Court.
By the first ground of appeal the appellant alleges that the Federal Circuit Court erred in failing to find that the Tribunal’s finding that the appellant faced a remote risk of being charged with an offence in Sri Lanka by reason of leaving Sri Lanka was affected by illogicality or irrationality. The appellant said that he claimed to fear harm in Sri Lanka by reason of being charged with an offence based on illegal departure and, as a consequence, being detained and tortured in detention.
At [127] the Tribunal found that “since November 2012, all returnees who left Sri Lanka illegally have been arrested by the CID [police] after being processed back into Sri Lanka and charged with an offence under the Immigrants and Emigrants Act and bailed”. At [128] the Tribunal concluded that “given that the applicant was only six years old when he left Sri Lanka, the Tribunal finds that the chance or risk that he would be charged with offences under s 45 of the Immigrants and Emigrants Act is remote”. The appellant said that the finding at [128] was illogical or irrational in light of the finding at [127] that “all returnees who left Sri Lanka illegally” are charged with illegal departure offences upon return to Sri Lanka.
In its written submission the Minister identified that the recital of the Tribunal’s reasoning contained in the appellant’s notice of appeal is missing a critical step. At [128] the Tribunal said that “s 7.5 of the Chapter IV of the Sri Lankan Penal Code (‘General Exceptions’) states that an act that is done by a child under eight years of age is not an offence”. It was in this context that the Tribunal came to the conclusion that the appellant, having left Sri Lanka aged 6, would only face a remote risk of being charged with an offence under s 45 of the Immigrants and Emigrants Act.
As the Minister submitted, the Tribunal’s conclusion could not be said to be lacking an intelligible justification. Nor did it disclose illogicality of the kind required to establish jurisdictional error. The Tribunal plainly had a cogent basis for its conclusion that the appellant was unlikely to be arrested upon return to Sri Lanka for illegal departure – it considered that the Sri Lankan authorities would regard the appellant as not having committed any offence because he was below the age of criminal responsibility at the time of the departure under the Sri Lankan legislation. In that context, the reference to “all returnees who left Sri Lanka illegally” at [127] would not apply to the appellant because he would not be regarded as having left Sri Lanka illegally. It follows that the supposed inconsistency between [127] and [128] does not arise.
The appellant has not established any illogicality or irrationality in the Tribunal’s reasons. Accordingly, the first ground of appeal must fail.
By the second ground of appeal the appellant said that the Federal Circuit Court erred by failing to find that the Tribunal had misunderstood the country information regarding the appellant’s risk of being charged with an offence in Sri Lanka by reason of leaving Sri Lanka illegally. This ground was also based on the findings at [127]-[128] of the primary judgment. The appellant observed the Tribunal’s finding at [127] that “all returnees who left Sri Lanka illegally” are charged with illegal departure offences upon return to Sri Lanka was based on country information reports cited at footnotes 17 and 18 of the Tribunal’s reasons. As noted above, the Tribunal concluded at [128] that the appellant was unlikely to be arrested because he was below the age of criminal responsibility when he left Sri Lanka. The appellant’s notice of appeal said that the finding at [128] misunderstood the country information cited at footnotes 17 and 18.
The nature of what the Tribunal misunderstood in the material cited at footnote 17 and 18 was not made clear by the notice of appeal or by the appellant’s submissions. To the extent that the ground rehearses the issues dealt with in the first ground, it fails for the reasons given above. To the extent that it addresses some other misunderstanding of the Tribunal, the appellant has failed to identify the nature of the misunderstanding and cannot make good on his submission. Accordingly, the second ground of appeal must fail.
By the appellant’s third ground of appeal it was contended that the Federal Circuit Court erred by failing to find that the Tribunal had failed to properly consider the appellant’s claim or an integer of his claim relating to the appellant’s fear of harm in Sri Lanka because of the authorities having an adverse interest in his family because of their desire to hide revelations about the appellant’s sister being sexually abused by the SLA. The appellant made no submissions but the ground of appeal alleges that neither the Tribunal’s reasons at [94] or its reasons otherwise given indicated that it had actively engaged with the claim about the authorities in Sri Lanka having an adverse interest in his family by reason of his sister having been sexually assaulted. The appellant alleged that this led to an inference that the Tribunal did not give the claim, or an integer of the claim, genuine consideration.
At [94] the Tribunal said:
The tribunal does not accept the applicant’s contention that his sister’s work as a teacher of Tamils would be considered important by the Sri Lankan authorities so as to merit such attention. Nor does the tribunal accept that the fact that the applicant’s teacher uncle was killed by authorities in 1990 indicates that his sister’s role would be viewed as important or a threat to the authorities. The tribunal has found above that the applicant's uncle’s profile as a teacher was not a reason for his death at the hands of the authorities more than two decades earlier. The tribunal also finds the applicant’s evidence that it is not known what information was given to the authorities or that a story may have been made up about his sister speculative. It further does not accept on the evidence before it that the suggested potential motive of the SLA wishing to silence the applicant’s sister about the sexual abuse she suffered in detention is sufficient to warrant the prolonged adverse interest in his sister and family that the applicant has claimed.
The first difficulty with the appellant’s third ground of review is that the claim about the sexual abuse suffered by his sister was only one among many reasons given by the appellant in support of his claim that he feared harm because the authorities in Sri Lanka have an adverse interest in his family. In that context it is difficult to accept the appellant’s contention that the authorities would have an adverse interest in him to cover up the allegations of sexual abuse constituted a separate integer of his claim. It is more aptly characterised as one reason among many given in support of an integer of his claim, the integer being that he feared harm because the authorities had taken an adverse interest in his family. The Tribunal was not obliged to undertake a line-by-line analysis of the case put to it. It gave adequate consideration to the claim that the authorities in Sri Lanka had taken an adverse interest in the appellant’s family, as is evidenced by the extract above and the Tribunal’s reasons at [88]‑[104].
If I am wrong and the contention that the authorities would have an adverse interest in him to cover up the allegations of sexual abuse did constitute a separate integer of the claim before the Tribunal, then ground three nevertheless fails. The Tribunal said at [90] that it had “significant concerns regarding the applicant’s evidence of … the alleged ongoing interest in his sister”. At [91]-[93], the Tribunal indicated that it had difficulties accepting aspects of the evidence about the appellant’s sister and did not accept that the SLA maintained an ongoing interest in the appellant’s sister. At [94], the Tribunal said that it “does not accept on the evidence before it that the suggested potential motive of the SLA wishing to silence the applicant’s sister about the sexual abuse she suffered in detention is sufficient to warrant the prolonged adverse interest in his sister and family that the applicant has claimed” (emphasis added). It is plain that the Tribunal was drawing a conclusion based on a chain of reasoning at [90]-[94]. The Tribunal was not satisfied that authorities were still interested in the appellant’s sister after such a long of period of time. In the context of that finding it is clear that the Tribunal was similarly not satisfied of the appellant’s claim that the authorities would have an interest in his family after such a long period of time had elapsed in order to cover up any sexual abuse suffered by his sister. In doing so, to the extent that the contentions about his sister formed a separate integer of the claim, the Tribunal adequately dealt with it by making the aforementioned findings. Accordingly, the third ground of appeal fails.
As the appellant has failed to demonstrate any appealable error in the judgment of the Federal Circuit Court, the appeal is dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg. Associate:
Dated: 30 March 2022
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