BSE15 v Minister for Immigration and Border Protection
[2018] FCA 689
•17 May 2018
FEDERAL COURT OF AUSTRALIA
BSE15 v Minister for Immigration and Border Protection [2018] FCA 689
Appeal from: BSE15 v Minister for Immigration and Anor [2017] FCCA 2535 File number: VID 1213 of 2017 Judge: MCKERRACHER J Date of judgment: 17 May 2018 Catchwords: MIGRATION – protection (class XA) visa – where a delegate of the Minister refused to grant a visa – where the Refugee Review Tribunal affirmed the delegate’s decision – application for judicial review to the Federal Circuit Court dismissed – unparticularised and novel grounds of appeal – impermissible merits review sought – leave to advance new ground of review refused
Held: appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 46A(1) Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 Date of hearing: 10 May 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr C McDermott Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to the question of costs ORDERS
VID 1213 of 2017 BETWEEN: BSE15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
17 MAY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
The appellant appeals a judgment of the Federal Circuit Court of Australia, which dismissed his application for judicial review of a decision of the Refugee Review Tribunal (as it then was, now the Administrative Appeals Tribunal): BSE15 v Minister for Immigration and Anor [2017] FCCA 2535. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Protection (class XA) visa.
BACKGROUND
The appellant is a citizen of Sri Lanka. He arrived at Christmas Island as an unauthorised maritime arrival on 2 August 2012 and subsequently applied for a visa. On 14 March 2014, the Minister's delegate refused to grant the appellant a visa. The appellant then sought a review of the delegate's decision in the Tribunal. The appellant's authorised representative made written submissions to the Tribunal on his behalf both before, and after, the hearing in which he participated on 5 May 2015.
THE CLAIMS
The appellant claimed he had been constantly harassed and detained by Sri Lankan authorities, who frequently came to his family home in search of his father, a suspected supporter of the Liberation Tigers of Tamil Eelam (LTTE). The appellant made claims on the basis of his Tamil ethnicity, his imputed political support of the LTTE, his status as a failed asylum seeker and his status as a person who had departed Sri Lanka unlawfully.
IN THE TRIBUNAL
The Tribunal affirmed the Minister’s delegate’s decision.
Under the heading 'Imputed political opinion', the Tribunal determined that there were 'good reasons to doubt the truth' of the appellant's claims that his father was a suspected supporter of the LTTE (and of adverse interest to Sri Lankan authorities on that basis), which was a major basis of the appellant’s claim that he was imputed with a pro-LTTE political opinion. The Tribunal made these findings:
(a)the appellant's father had not been pursued by the police, and nor was there an apparent reason why the appellant's father would be so adversely singled out;
(b)if the appellant's father was of adverse interest to the police, it was difficult to understand why he would be released when he was initially arrested;
(c)it was 'inherently implausible' that the appellant's father was living in hiding in Mullaitivu, remaining indoors for five years, as the appellant claimed, and implausible that the appellant's father's presence would not have become known;
(d)in circumstances where the appellant claimed that the police came to his home seven to eight times, it was not plausible that the police 'simply accepted' explanations from his mother and aunt that they did not know where his father was;
(e)it was 'inherently implausible' that the appellant was able to escape capture from the police between September 2011 and June 2012 as he claimed; and
(f)if the police genuinely suspected the appellant was an LTTE member or supporter, they would not have released him on three separate occasions rather than placing him in long-term detention or rehabilitation.
Taking these matters together the Tribunal said it was unable to be satisfied as to the credibility of the appellant's claims. Further, the Tribunal was not satisfied that these matters did, in fact, occur and was not satisfied that the appellant had ever come to the adverse attention of the authorities as a person suspected of some kind of connection with the LTTE. The Tribunal did not accept that he left Sri Lanka in fear for this reason or that if he returned he would be suspected of having had such a connection because of anything that happened before he left.
In addition, the Tribunal was not satisfied that the appellant's ethnicity, status as a young Tamil male, or status as a failed asylum seeker, would serve to cast suspicion on him as holding a pro-LTTE political opinion, or that he would suffer serious or significant harm in consequence. The Tribunal accepted that the appellant would be perceived as someone that had unsuccessfully sought asylum in Australia, but it was not satisfied that he would be imputed with a pro-LTTE political opinion for this reason.
Based on its assessment of country information, particularly concerning vulnerable kinds of persons with particular profiles and procedures used by Sri Lankan authorities on persons returning to Sri Lanka, the Tribunal determined that the appellant would not face a real chance of serious harm from Sri Lankan authorities on return to Sri Lanka at the airport or returning to his home area because he was unsuccessful in seeking asylum in Australia.
The Tribunal made findings as to the likely consequences of the appellant being prosecuted for having unlawfully departed from Sri Lanka. The Tribunal found:
(a)the relevant legislation (the Immigrants and Emigrants Act) was a law of general application, which was not selectively, arbitrarily or discriminatorily enforced; and
(b)based on the country information it assessed, the appellant would not face more than some extended questioning at the airport by Sri Lankan authorities, relatively brief arrest and detention in possibly cramped and unsanitary conditions while the appellant awaited a bail hearing, and a subsequent fine of moderate sum if convicted for a breach of the Immigrants and Emigrants Act.
The appellant's claim at the Tribunal hearing that upon return to Sri Lanka he would be prohibited from leaving for up to five to seven years was described by the Tribunal as ‘speculative’.
Each of the appellant's claims under the Refugees Convention was identified by the Tribunal as having been considered both individually and cumulatively. The Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of persecution and, therefore, was not satisfied he was a refugee.
After considering whether any of the appellant's claims engaged Australia's complimentary protection obligations in s 36(2)(aa) of Migration Act 1958 (Cth), the Tribunal concluded that this criterion was not satisfied. In coming to this conclusion, in particular, the Tribunal determined that the appellant would not face a real risk of significant harm arising from him being detained pending the grant of bail, because, among other things, the conditions the appellant would face in a prison context were not intentionally inflicted by Sri Lankan authorities.
IN THE FEDERAL CIRCUIT COURT
The appellant sought judicial review of the Tribunal's decision, on the grounds that the decision was ‘affected by an error of law’ and ‘denied the [appellant] of procedural fairness’. The Federal Circuit Court dismissed this application, noting:
(a)in response to the appellant's complaint at the hearing before the Federal Circuit Court that the Tribunal did not believe his evidence, the Tribunal's credibility findings were 'logical and cogent' and no error of law was apparent in the Tribunal's reasoning in rejecting the appellant's claims on this basis;
(b)the appellant had not been denied procedural fairness; and
(c)no error attended the Tribunal's findings as to whether the appellant would face a real risk of significant harm arising from his potential detention.
BEFORE THIS COURT
Written submissions
In this Court, by his notice of appeal filed 8 November 2017, the appellant appeals on two grounds:
(a)Ground one: The Federal Circuit Court should have found, but did not find, that the Tribunal's credibility findings were attended by jurisdictional error.
(b)Ground two: The Federal Circuit Court should have found, but did not find, that the Tribunal failed to consider the appellant's claim of being a 'Young Tamil of Hindu faith from the West of Sri Lanka with perceived political opinion against the State' cumulatively and that such a failure constituted jurisdictional error.
Oral submissions
At the hearing before me, the appellant did not seek to advance any substantive argument. He simply asked for a further opportunity to present his case to the ‘RRT’ and, from the bar table without any additional evidence, indicated that he would be able to provide sufficient evidence to persuade the Tribunal as to his credibility. He asked for an opportunity to listen to the audio tapes of the interview. As counsel for the Minister rightly observed, the time for presentation of evidence in support of the claims has passed. No argument was advanced to suggest an inadequate opportunity to present evidence or any other legal impediment. On an examination of the Tribunal record, it appears that a fulsome opportunity was afforded the appellant to present evidence in support of his claims and to explain his claims as he saw fit to do so.
CONSIDERATION
Ground one is unparticularised. No attempt is made to impugn the credibility findings of the Tribunal. The Tribunal's findings were open to be made for the reasons it gave. As the High Court and this Court has made clear, the fact that the complaints of the appellant may be as to fact finding or indeed credibility does not automatically protect the decision from examination for jurisdictional error. However the categories of case in which such findings may be reviewed are specific and limited. The Tribunal’s findings are not susceptible to being impugned on any of the accepted categories identified: see, for example, the Full Court in CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 (at [38]).
Further, it is essential to recognise that it is not within the power of this Court nor the Federal Circuit Court to re-find the facts as a fact finder. It is the legality of the decision of the Tribunal or the Federal Circuit Court that is in issue. The appellant seeks to do no more than invite this Court to reject the merits of the Tribunal's findings of fact. This ground must be dismissed.
Ground two was not advanced before the Federal Circuit Court and as such the appellant requires leave to raise it in this Court. The appellant has not demonstrated that he did advance any claim to engage Australia's protection obligations on the basis simply of his Hindu faith. But, importantly, the Tribunal clearly understood and accepted (at [21]) that he was 'ethnically Tamil and a Hindu by religion'. The Tribunal rejected (at [31]) the proposition that the appellant would be imputed as holding a pro-LTTE or anti-government political opinion because he was a young Tamil male. At [37], based on its assessment of country information (at [33]-[36]), the Tribunal was not satisfied that ethnic Tamils faced a real chance of serious harm:
simply because of their ethnicity, or that associated factors such as being a young male or having geographic origins in the North or East of the country put them at greater risk of such harm.
The Tribunal went further to find that it was not satisfied that the fact that the appellant was a young male would 'operate to exacerbate the fact of his Tamil ethnicity so as to create such a real chance [of serious harm]'. The Tribunal identified, that having regard to all the information before it, individually and cumulatively, the appellant would not face a real chance of serious harm or real risk of significant harm based on his Tamil ethnicity (at [56], [60] and [64]). Ground two, to the extent it was explicitly or implicitly before the Tribunal, has been specifically considered and disposed of by the Tribunal, or, alternatively, subsumed within findings of greater generality.
Leave to advance this new ground cannot be permitted.
CONCLUSION
There being no other grounds and no other apparent error in the deliberation of the Tribunal or the review by the Federal Circuit Court, the appeal must be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 17 May 2018