BJG15 v Minister for Immigration and Border Protection

THE FEDERAL CIRCUIT COURT 20 On 25 November 2015, the appellant filed an application seeking judicial review in the Federal Circuit Court. The application was subsequently amended. 21 Ground one of the amended application was abandoned at hearing. Ground two of the application contended that the Tribunal fell into jurisdictional error in making a finding that was so unreasonable that no reasonable decision-maker could have made it. The submission was that the inconsistencies given significant weight by the Tribunal, at [58] of its reasons, were easily able to be explained by the appellant upon simple enquiry by the Tribunal. It was contended that the Tribunal's failure to pursue that obvious enquiry was unreasonable. 22 The Federal Circuit Court rejected that ground, concluding that the Tribunal "discharged its obligation … by putting to the applicant for his comment the matters that troubled the tribunal". The Tribunal was not required to give the appellant a running commentary upon what it thought about the evidence that was given: SZBEL v Minister for Immigration and Multicultural and Ethnic Affairs (2006) 228 CLR 152 at [47]. The Federal Circuit Court noted that the "duty to enquire" applies to information as such, not to the assessment by the Tribunal of the evidence before it. 23 Nothing turns on the Federal Circuit Court's reference to a "duty to enquire" rather than to a failure to make an obvious inquiry about a critical fact sufficient to give rise to jurisdictional error, for example as a constructive failure to exercise jurisdiction - see: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]. 24 No complaint is made in this Court about the Federal Circuit Court's rejection of ground 2. 25 Ground three of the application contended that the Tribunal fell into jurisdictional error in making a finding that was so unreasonable that no reasonable decision-maker could have made it in distinguishing between university students and women, on the one hand, and the appellant, on the other, in finding that the appellant would not be imputed to be a supporter of the LTTE. This ground was also rejected by the Federal Circuit Court. The Tribunal's conclusion that the appellant would not be imputed to be a supporter of the LTTE was based on a number of matters, after considering all of the country information before the Tribunal and the material and submissions provided by the appellant. The Federal Circuit Court concluded that the assessment of the country information was a matter for the Tribunal, referring to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13] and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [26], [32]. The Court concluded that, even if the Tribunal misinterpreted the particular piece of information provided by the appellant's representative or drew incorrect conclusions from it, any such errors were not unreasonable in the sense required for jurisdictional error: FCC at [50]. 26 Ground four of the application contended that the Tribunal applied the incorrect test relating to the definition of persecution under the former s 91R of the Act "in that it failed to find that a deprivation of the applicant's liberty could constitute serious harm, contrary to former section 91R(2)(a) of the Migration Act". This ground - the meaning of which was elucidated (or perhaps changed) in argument before the Federal Circuit Court - was also rejected. The reasons for that are addressed below.

THE APPEAL 27 The grounds of appeal are set out in an Amended Notice of Appeal which was annexed to an affidavit filed in support of an earlier application to adjourn. I gave leave for that document to be relied upon at hearing as identifying the grounds of appeal. It contains three grounds.

Ground 1 28 Ground 1 is as follows: The Federal Circuit Court erred in the tests it applied to cruel or inhuman treatment or punishment for the purposes of ss 36(2)(aa) and 36(2A) of the Migration Act, namely in finding that a specific intention on the part of the state authorities to cause suffering to the appellant was necessary for the cruel or inhuman treatment to be made out. 29 This ground of appeal must fail. The argument when put to the Federal Circuit Court was contrary to the Full Court decision in SZTAL v Minister for Immigration (2016) 243 FCR 556 at [39] and [68] and is now also contrary to the High Court's decision in that case: (2017) 347 ALR 405.

Ground 2 30 Ground 2 claims that: The Federal Circuit Court erred in its application of s 91R of the Migration Act in determining whether the Tribunal had erred in assessing whether a threat to the appellant's liberty amounted to serious harm. 31 At the relevant time, ss 91R(1) and (2) were in the following terms: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 32 Ground 2 in this appeal equates to ground 4 before the Federal Circuit Court. Ground 2 is supported by two particulars: (a) The Court erred in finding that a qualitative analysis was not required to determine whether a deprivation of liberty was sufficiently serious to amount to serious harm. (b) The Court erred in determining that the Tribunal had found that the detention would not be for a Convention reason, given that the Tribunal had found that the appellant would be detained as a failed asylum seeker, being a particular social group for the purposes of the Refugees Convention. 33 I deal with particular (b) first. As noted above, the Tribunal accepted that the appellant might be detained for questioning by Sri Lankan immigration authorities, including the CID, at the airport on his return because he would be identified as an individual being returned to Sri Lanka from Australia as a failed asylum seeker: at [80]. 34 The Tribunal found at [81] that: (1) the deprivation of the appellant's liberty for the purposes of questioning "will be the result of the operation of a law of general application that is not on its face discriminatory"; and (2) "the country information … does not indicate that the laws governing the deprivation of liberty of individuals for questioning on their return to Sri Lanka is applied discriminatorily". 35 These findings are not challenged. 36 On the basis of those findings, the Tribunal was not satisfied that the detention of the appellant would involve "systematic and discriminatory conduct" under s 91R(1)(c) and that it would therefore not amount to persecution for a Convention reason: at [81]. Subsection 91R(1) required both "serious harm" and "systematic and discriminatory conduct" for there to be persecution for the purposes of the Refugees Convention. Accordingly, the absence of "systematic and discriminatory conduct" was sufficient of itself for a conclusion that the detention would not amount to persecution. 37 The Federal Circuit Court concluded that there was material before the Tribunal supporting its conclusions and that the Tribunal was entitled to rely on the information from DFAT as to how the Sri Lankan law was implemented and that the findings of the Tribunal did not involve jurisdictional error: at [57] and [58]. The Federal Circuit Court has not been shown to have erred in reaching those conclusions. 38 I turn to particular (a). It is not strictly necessary to reach a conclusion in respect of particular (a), because the detention could not amount to persecution in the absence of "systematic and discriminatory conduct". Nevertheless, I will deal briefly with this particular. Before the Federal Circuit Court, the appellant relied on SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497 for the proposition that the Tribunal was in error in failing to undertake a qualitative assessment of the detention to which the appellant would be submitted. As the Federal Circuit Court correctly concluded, that case is not authority for that proposition. SZTEQ is authority for the proposition that s 91R did not forbid a qualitative assessment with a view to establishing whether or not a period of detention rises to the level of "serious harm" required under s 91R(1)(b) for persecution, if the detention is for a Convention reason and the other aspects of s 91R are satisfied: SZTEQ at [46]. It is not authority for the proposition that a qualitative analysis must be undertaken. It was unnecessary for the Tribunal to undertake one in circumstances where the Tribunal had found that the deprivation of liberty would not be persecution for a Convention reason. 39 Accordingly, ground 2 of the appeal is not made out.

Ground 3 40 Ground 3 claims that the Federal Circuit Court erred in failing to find that the Tribunal's reasons were irrational. The ground is supported by two particulars: (a) The Court erred in finding that the assessment of country information placed before the Tribunal is a matter entirely for the Tribunal. (b) The Court erred in failing to find that the Tribunal's finding at [72] of the Tribunal's decision record, that "it is only Tamils who otherwise have a history of actively supporting or being involved with the LTTE or opposing the current Sri Lankan government, or are currently actively opposed to the current Sri Lankan government, and its policies in relation to the treatment of Tamils in particular, or are imputed to be so, who face a risk of harm at the hands of the Sri Lankan government and security forces that can be said to be more than remote", was irrational in that it was not open to the Tribunal on the basis of the country information from which the Tribunal purportedly drew that conclusion. 41 As to particular (a), the Federal Circuit Court was correct to conclude at [49] that the assessment of country information placed before the Tribunal was a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13] and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [26], [32]. 42 As to particular (b), the finding made by the Tribunal at [72] of its reasons was open to it on the material before it (see, for example paragraph [70] and the reasons of the Minister's delegate) and could not be said to be "irrational" such as to constitute jurisdictional error - see: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [135]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]. There was no error on the part of the Federal Circuit Court in reaching the conclusion that the Tribunal had not committed a jurisdictional error.

Further matters 43 In the course of oral submissions, the appellant submitted that the Tribunal did not give him an opportunity to address the 16 February 2015 DFAT Report referred to in these reasons at paragraph [4] above, and that he was therefore denied the opportunity to address that information. In response, counsel for the first respondent submitted, correctly, that the Tribunal was not required to give the appellant particulars of the DFAT Report because the report fell within the exception under s 424A(3)(a), being information that was not specifically about the appellant or another person, but rather a class of persons of which the appellant or another person was a member - see: BKB16 v Minister for Immigration and Border Protection [2017] FCA 1019 at [29] and SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129 at [3], [12]. The effect of ss 422B and 424A(3)(a) of the Act is that the Tribunal cannot be said to have denied procedural fairness in failing to put the DFAT Report to the appellant. However, in any event, the appellant through his representative made extensive submissions about the 2015 DFAT Report in written submissions to the Tribunal beginning at AB 226 at the express invitation of the Tribunal. This complaint is therefore unfounded.

CONCLUSION 44 The appeal is dismissed with costs, as agreed or assessed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.