BBU16 v Minister for Immigration and Border Protection

A failure to consider & future harm 11 Considering the Notice of Appeal as an ill-expressed request for this Court to review the manner in which the primary Judge resolved the two Grounds of Review pressed before the Federal Circuit Court, no appellable error is discernible. 12 The first of the two Grounds of Review alleged a failure on the part of the Tribunal to consider "an essential integer" of the claims made by the now-Appellant. The Particulars identified those matters which it was claimed were not considered. 13 In very summary form, the primary Judge rejected this argument by reference to the need to review the Tribunal's reasons not in an over-zealous manner (cf. Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ) but instead read "fairly, holistically and in context": [2018] FCCA 1196 at [40]. In particular, the Tribunal's reasons must be read in the context of the findings made by the Tribunal as to the inconsistencies in the claims being made by the now-Appellant. Those inconsistent claims largely focussed upon the frequency and extent to which he had been questioned by the authorities. 14 As pointed out by the primary Judge, the Tribunal had difficulties in accepting the claims made by the now-Appellant. Relevantly, the Tribunal found (in part) as follows: [49] The Tribunal is also troubled by the discrepancy in the evidence regarding the frequency and period over which the applicant claimed to have been called back for questioning. The applicant is recorded as having told the Department during his Irregular Maritime Arrival Entry Interview that he was questioned by the CID and Sri Lankan Army between 2008 and 2012. The applicant is recorded to have said that the CID last called him for investigations in the fifth month of 2012. The applicant agreed that four years after the shooting incident, the CID were looking for him. The applicant estimated that, between 2008 and 2012, the CID called for him 30 times. The applicant also gave evidence at the protection visa interview on 2 June 2014 that he was questioned on approximately 30 occasions. The applicant said that he last went in for questioning around 1 month before his departure from Sri Lanka in July 2012. The applicant's statutory declaration was also consistent with this evidence. [50] In contrast, at the Tribunal hearing, the applicant estimated that he was questioned seven or eight times a year between 2008 and 2010. The applicant told the Tribunal that he was not questioned by the CID or Sri Lankan Army at any time after he moved to [XXX] and started work in a grocery store. [51] The Tribunal has considered the submissions put by the applicant's representative as to the purpose of the entry interview and the drawing of inferences from inconsistent prior statements of an asylum applicant. The Tribunal is also prepared to make allowances for the applicant's age and the fact that the evidence has been given in different forums using different interpreters. The Tribunal is cognisant of the general difficulties faced by asylum applicants in presenting their cases. The Tribunal finds, however, that there is a material difference between the applicant's initial claims to have been questioned over a four year period up until about a month prior to his July 2012 departure and his later claim that he had no personal contact with the Army or CID over the matter from 2010 onwards. [52] These differences in the evidence, which the Tribunal regards as significant, leave the Tribunal unsatisfied that the applicant was repeatedly questioned or called in for questioning by either the CID or Sri Lankan Army up until 2010 or 2012. The Tribunal is also not satisfied that the CID ever came to question the applicant in a white van as suggested at hearing. The Tribunal is bolstered in its conclusion by the applicant's evidence that he was at school when the incident occurred. The Tribunal considers that this information would have been readily apparent to anyone investigating the matter. The applicant's evidence also indicated that his family had led a relatively peaceful life up until the incident and had no prior difficulties with the CID or Army. Although the applicant and his family are Tamils, as the applicant said at hearing, all of his neighbours were Tamil. There appears to be no logical reason for the CID or Army to constantly or repeatedly question the applicant over a period of several years. The primary Judge proceeded upon the basis, as he was entitled to do, that these findings of the Tribunal were findings of fact open to be made. The primary Judge also went beyond simply looking at whether the findings were available on the evidence presented to the Tribunal and considered, for example, the more specific claims being made and whether those claims had been considered by the Tribunal. One of those claims, for example, was that the now-Appellant had a gun placed to his head during his questioning. This was a claim, again as pointed out by the primary Judge, raised in a statement made in support of the Protection visa application. It was also a claim that had been referred to by the Tribunal. When addressing the now-Appellant's claims that he had been detained and questioned on many occasions, the Tribunal thus summarised these claims as follows: [12] … The applicant claimed that after this incident, he was constantly called in for questioning and estimated that he had been called in at least 30 times. The applicant claimed this occurred sometimes once a week and other times once a month. During the interrogations, they would always place a gun to the applicant's head. Any suggestion that the Tribunal was not aware of - and did not consider - this particular claim was not sustainable. 15 The care with which the Tribunal summarised the claims being made and proceeded to make findings of fact, and the degree of care with which the primary Judge scrutinised the reasons of the Tribunal, stands in the way of accepting the proposition that the primary Judge was in error in his consideration of the first Ground of Review. The claims being made were considered by the Tribunal and the primary Judge committed no appellable error in rejecting the first Ground of Review which was pressed before that Court. 16 The second of the two Grounds of Review pressed before the Federal Circuit Court was an allegation that the Tribunal failed to consider when assessing "future harm the applicant may face" the fact that the now-Appellant "had a profile … in the past". Again, a series of Particulars to that Ground of Review identified those parts of the Tribunal's reasons to which attention was directed. 17 The Tribunal gave consideration to the "profile" of the now-Appellant. But it was concluded that that "profile" was not such as to attract the attention of the authorities in Sri Lanka or expose him to harm should he be returned. The Tribunal thus found: [54] … The Tribunal has carefully considered this argument but remains unsatisfied that there is a real chance or risk of the applicant being harmed on this basis. As indicated above, the Tribunal is not satisfied that the applicant had a profile that was of interest to the authorities before his departure from Sri Lanka. … The Tribunal is not satisfied that there is anything in the applicant's profile to distinguish him from the thousands of Tamil asylum seekers who have safely returned home. [55] … the Tribunal is not satisfied that the applicant has in the past or would now be imputed with a pro-LTTE opinion or that he falls within any of the other profiles identified by UNHCR as being at risk. … The Tribunal is not satisfied that there is a real chance or risk of serious or significant harm arising simply from the applicant's Tamil ethnicity or place of origin, now or in the reasonably foreseeable future. 18 In rejecting this argument, the primary Judge concluded (inter alia) as follows: [76] In short, before the Court, the applicant has failed to focus on the findings actually made by the Tribunal. That is, findings that were reasonably open to it to make on what was before it. In this light, I agree with the Minister that the applicant's ground seeks impermissible merits review. [77] As to the time of the incident itself the Tribunal accepted that the applicant and his father had been questioned in 2008 on a smaller number of occasions than those claimed by the applicant. The Tribunal found that the applicant did not witness the shooting of the two Sri Lankan army officers in 2008, and that he found himself in circumstances common to many Tamils residing in northern Sri Lanka at the time, namely, being in some proximity to a clash between the LTTE and the Sri Lankan army ([54] at CB 181). [78] The Tribunal found that subsequent to the incident in 2008, the applicant did not have a profile to distinguish him from many other Tamils. This was reasonably open to the Tribunal on what was before it. [79] The applicant's ground really seeks to challenge the Tribunal's findings. Findings which were reasonably open to it on what was before it, and for which the Tribunal gave cogent reasons. The ground really seeks merits review. Ground seven is not made out. 19 No error is exposed in the primary Judge's rejection of this Ground of Review.

CONCLUSIONS 20 No appellable error has been exposed in the reasoning of the primary Judge. 21 To the extent that the Notice of Appeal seeks to rely upon attempts to find "legal representation at this stage", it may be noted that this aspect of the Ground can be construed as either a request for an adjournment or as a contention that to proceed in the absence of legal representation being secured would be a denial of procedural fairness. There is, of course, no entitlement for legal representation to be made available in administrative proceedings such as the present: cf. Commissioner of Taxation v La Rosa [2002] FCA 1036 at [120], (2002) 196 ALR 139 at 161 per R D Nicholson J. And no details have been provided as to what steps (if any) have been taken to secure legal representation. There is no occasion, therefore, not to now proceed to hear and resolve the appeal. 22 It follows that the appeal must be dismissed. 23 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent, either as agreed or assessed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.