BKL21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2024-04-04|Before: Jackson J

The appeal is dismissed.
The appellant must pay the first respondent's costs of the appeal fixed in the sum of $5,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 The appellant is a citizen of Sri Lanka and a Tamil from Jaffna, in the Northern Province of Sri Lanka. He arrived in Australia in 2012 and applied for a protection visa in 2015. A delegate of the first respondent (Minister) made a decision not to grant the visa. The decision was referred to the Immigration Assessment Authority. 2 In 2016, the Authority affirmed the delegate's decision. The appellant sought judicial review of the Authority's decision in the Federal Circuit Court of Australia (as it then was), where his application was dismissed. The appellant appealed to this Court, which found that the Authority's decision was affected by jurisdictional error, set aside the Authority's decision, and remitted the matter to the Authority. 3 In 2019 the Authority, differently constituted, again affirmed the decision of the delegate not to grant the appellant a visa. The appellant sought judicial review of this decision in the Federal Circuit Court, which found that the Authority's decision was affected by jurisdictional error, quashed the decision, and remitted it to the Authority. 4 In 2021 the Authority, differently constituted and on the basis of additional information, once again affirmed the decision not to grant the appellant a visa. The appellant sought judicial review in the Federal Circuit and Family Court of Australia (FCFCOA) where, in 2022, his application was dismissed. 5 The appellant now appeals from that dismissal. For the following reasons, the appeal will be dismissed.

The 2021 decision of the Authority 6 The Authority summarised the appellant's claims to protection as follows: • The applicant is a Tamil from the Northern Province, Sri Lanka. • There was a military camp in the area and Tamils were regularly taken to the camp and beaten and tortured. • Being Tamil, his family was suspected of supporting the [Liberation Tigers of Tamil Elam (LTTE)]. The applicant provided practical support to the LTTE and helped build bunkers. • The applicant has been detained and questioned many times and it is difficult to remember how many times and when. In his statement of claims he recounted a particular incident when he was beaten in the cemetery. The applicant has scars from this and other incidents. • Other family members were harassed and mistreated or harmed during the civil war. His brother-in-law lost a leg after stepping on a landmine. Brother S was detained, questioned and assaulted by the army. Brother K came to Australia around 2009 and has been accepted as a refugee. Brother Rn was arrested in 1995 and detained for two years; he was also attacked in 2014. • The applicant travelled to Saudi Arabia in 2004 where he worked. He returned to Sri Lanka in 2006. • In 2008 the applicant moved to Colombo to escape the problems in the north. In Colombo he was stopped by Criminal Investigation Department (CID) officers conducting security checks. He was taken to a police station where he was detained for three days. He was asked about his activities. He was released after identity checks were conducted. • The applicant wanted to leave Sri Lanka to avoid further harm and in 2012 he became aware of an opportunity to come to Australia. He departed Sri Lanka illegally in July 2012. • Because he left Sri Lanka illegally the applicant fears if he returns he will be detected and harmed at the airport. He is concerned the authorities will become aware of his history of past detention and questioning and that he will be harmed. He is aware of returnees who have been arrested and detained. • Information reporting on the improved security situation for Tamils makes generalisations about the treatment of the 'average' Tamil person. In addition to fearing harm as a Tamil the applicant fears harm because of an imputed political opinion as an LTTE supporter and his own unique personal circumstances mean his risk profile is higher than that of the average returnee. • As a Tamil he cannot obtain protection from the authorities and his fear extends to all of Sri Lanka. • The situation in Sri Lanka has not improved for Tamils, the military maintain a strong military presence and the [Prevention of Terrorism Act 1979 (Sri Lanka) (PTA)] remains in force. 7 On 15 April 2021, the Authority invited the appellant to comment on the improved security situation in Sri Lanka, and on inconsistent information he had provided about one of his brothers being in the LTTE. On 3 May 2021, the Authority received a statement from the appellant responding to the matters raised by the Authority, along with recent country reports. 8 The Authority accepted that the appellant is a Tamil from Sri Lanka who provided practical support to the LTTE, including by building bunkers. The appellant claimed that Tamils were suspected of being LTTE supporters and were detained for questioning by the military, and the Authority accepted this claim as it was consistent with country information about the security measures in place during the Sri Lankan civil war (1983-2009). 9 The Authority accepted that the appellant's brother-in-law was injured by a landmine, that the appellant's brother S was detained and questioned, and that his brother Rn was detained for two years, during which time he was mistreated. However, the Authority did not accept that one of the appellant's brothers was a member of the LTTE, as the appellant's account of this was inconsistent across different statements. Further, the Authority accepted that Rn was attacked in 2014, but did not accept that the attack indicated an ongoing security concern in relation to that brother. 10 The appellant stated that he had been detained, beaten and questioned many times. The Authority accepted that the appellant had scars from these encounters but did not accept that this indicated he was of ongoing security concern. Rather, these encounters were reflective of the treatment of the Tamil population generally at that time. The appellant was released after the initial checks and not charged with any security offences, and was subsequently able to leave the country in 2004, further indicating he was not of concern to the authorities. 11 The Authority accepted that the appellant was detained in Colombo for three days in 2006 but did not accept that this represented ongoing adverse interest in the appellant, as it was consistent with security checks of people in Colombo that were undertaken in that period. The fact that the appellant was then able to enter Colombo, and live and work there for an extended amount of time, indicated he was not of ongoing security concern. 12 The Authority accepted that the appellant departed Sri Lanka illegally in 2012. 13 The appellant had at different points referred to his brother K, who was granted an Australian protection visa in 2010. The Authority noted that the security situation in Sri Lanka was vastly different then, with United Nations High Commissioner for Refugees (UNHCR) risk profiles at that time indicating that young Tamil males from Northern Sri Lanka were likely to need international protection. More recent UNHCR advice states that being a young Tamil male and/or being from Northern Sri Lanka is by itself not enough to warrant protection, and only identifies those significantly involved with the LTTE as a risk group. 14 The Authority noted that refugee assessments apply a future test. While concerns about the security situation in Sri Lanka remain, and the military continues to have a significant presence in Northern Sri Lanka, it does appear that Tamils are no longer systematically targeted by the government. The PTA, which was previously used to detain Tamils, remains in force but now appears to be used primarily to target the Muslim population. The Authority considered that although his brother K's successful visa application broadly supported the appellant's own application, a review of more recent country information meant there was no real chance the appellant would suffer harm or be imputed with a political opinion or other profile of concern in Sri Lanka on the basis of his Tamil ethnicity and connections with the LTTE, or his or his family's past encounters with the authorities. 15 Further, the Authority was not satisfied that the appellant faced a real chance of harm on the basis of his scars from previous encounters with the Sri Lankan authorities, his lack of Sinhala language skills, or his return to the country as a failed Tamil asylum seeker. 16 The Authority accepted that the appellant departed from Sri Lanka illegally. He may be briefly detained upon returning to Sri Lanka as part of the processing procedures for involuntary returnees and may also be questioned or fined as a person who departed the country illegally. The Authority found that this would not constitute serious harm or significant harm, and additionally found that the law imposing this is not discriminatory in nature and that it is not applied in a selective or discriminatory manner. 17 On the basis of the above findings, the Authority found that the appellant did not meet the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (refugee) or the criterion in s 36(2)(aa) of the Act (complimentary protection).

The 2022 decision of the FCFCOA 18 The appellant was self-represented in the FCFCOA. He raised three grounds of review: jurisdictional error; bias based on conscious or unconscious prejudice by ignoring relevant materials; and identifying a wrong issue or a wrong question. 19 Under the first ground of review, the appellant did not particularise or meaningfully identify any specific jurisdictional error. The only context given by the appellant for this ground of review was a reference to the earlier appeal judgment of this Court setting aside the first decision of the Authority affirming the decision not to grant him a visa. The first Authority decision, this Court found, was affected by jurisdictional error because it did not engage with a claim concerning the appellant's fear of arbitrary arrest and detention under the PTA. 20 The primary judge found that the Authority had avoided the errors of the first Authority decision by extensively considering the present and likely future exercise of powers under the PTA. 21 The primary judge also found that the Authority had avoided the errors of the second Authority decision. The earlier Federal Circuit Court decision had been to the effect that the second Authority decision was affected by jurisdictional error because the Authority had acted unreasonably in failing to get new information from the appellant about country information on which it had relied in order to find that the PTA was suspended. The appellant had maintained that the PTA was still operative. The second Authority decision was also affected by jurisdictional error because the Authority had acted unreasonably when it had not exercised its discretion to obtain information about the grant of a protection visa to one of the appellant's brothers. The primary judge found that the 2021 decision of the Authority that was under review before her Honour was not affected by those errors, because the Authority had obtained updated country information and information about the basis on which the appellant's brother was granted a protection visa. 22 Consequently, and having conducted a general review of the Authority's decision for jurisdictional error, the primary judge concluded that the general first ground of 'jurisdictional error' was not made out. 23 Under the second ground of review, the appellant asserted that the Authority was biased in ignoring relevant materials, because it did not consider the facts that gave rise to his fear of persecution (including the harm he and his family had faced in the past), the operation of the PTA and the regulations under a Sri Lankan 'Public Security Act', or information from the UNHCR regarding alleged human rights abuses in Sri Lanka. 24 The primary judge found that the Authority did consider, and largely accepted, the appellant's claims regarding the harm he and his family had experienced in the past. The Authority nevertheless found, based on information about the current security situation in Sri Lanka, that the appellant did not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. 25 The primary judge found that the Authority did consider the operation of the PTA, as noted above. The primary judge also found that, while the Authority did not consider regulations under a 'Public Security Act' (or the Sri Lankan Public Security Ordinance 1947), the appellant did not refer to them in any of his submissions, nor did any implied claim emerge. 26 The appellant did not specify which UNHCR publications the Authority failed to consider. The primary judge found that the Authority did consider at least one UNHCR publication, and additionally considered a number of other publications addressing human rights in Sri Lanka. The primary judge noted that the weight given to country information is a matter for the Authority itself, as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. The appellant attached to his submissions some country information published between September 2021 and March 2022, which the primary judge found to be inadmissible as it was not published at the time of the Authority's decision and therefore could not have been before the Authority when it was making its decision. 27 More broadly, the primary judge was satisfied that the Authority had considered each of the appellant's claims and did not ignore any relevant material, and engaged in an active intellectual process when it considered the material before it. Her Honour also found that the appellant had failed to provide the necessary explanation for his allegation of bias, as he only asserted that the Authority ignored relevant materials and failed to provide any further, distinct proof of the alleged bias. There was nothing before the primary judge to show that the Authority had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter. Nor was there anything before her Honour showing that a fair-minded lay observer might reasonably apprehend that the Authority might not have brought an impartial mind to the review. The second ground of review was not made out. 28 Under the third ground of review, the primary judge construed the appellant's contention as being that the Authority identified the wrong issue or applied the wrong test. The appellant also asserted that the Authority had erred in its assessment of the risks facing Sri Lankan Tamils with links to the LTTE. The primary judge found that the Authority relied on UNHCR and Department of Foreign Affairs and Trade sources to find that, given the nature of his links to the LTTE, the appellant did not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. It was open to the Authority to rely on this information and its findings were reasonably open to it on the evidence before it. The primary judge also found that the Authority identified and applied the relevant law correctly. Consequently, the third ground of review was not made out.

The appeal 29 The appellant was self-represented in this Court. The sole ground of appeal was: The Primary Judge didn't adequately examine the evidence that was placed and didn't exercise the Courts proper Jurisdiction. 30 The Court cannot meaningfully engage with an appellant's ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge: EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12] (Farrell J). The appellant did provide additional factual material to the Court (see below), but this did not render his ground of appeal less general or more particularised. 31 At the appeal hearing, when asked about the first aspect of the above ground, the appellant said that he was referring to the following matter (as interpreted by the interpreter): 'Still we have problem in our country and the army is still there in our area.' But it is not this Court's function on appeal to review the merits of the Authority's decision about whether the appellant came within the refugee or complimentary protection criteria in s 36(2) of the Migration Act. Nor was the role of the FCFCOA to undertake merits review; rather it was to identify any jurisdictional error, on the basis of the grounds of review advanced before it. 32 In turn, the role of this Court on appeal is to determine whether there was appealable error on the part of the FCFCOA, on the basis of the grounds of appeal advanced by the appellant. Although a court can, in cases of unrepresented applicants, review the reasons under consideration to determine whether there is any self-evident error, the court should stop short of parsing the decision to identify potential arguments: COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J). 33 I have reviewed the primary judge's decision. Her Honour carefully and thoroughly examined the material the appellant put before her, in the form of an affidavit with an annexure and a short written submission. There is no basis for the claim that her Honour did not adequately examine the evidence placed before the FCFCOA. 34 Nor is there any basis for the claim that the primary judge did not exercise the FCFCOA's proper jurisdiction. The appellant was unable to expand on that at the hearing of the appeal. In any event, the primary judge considered whether the 2021 decision of the Authority was affected by jurisdictional error, in view of the matters advanced by the appellant, determined that no jurisdictional error had been established, and exercised the FCFCOA's jurisdiction to dismiss the application. No error is apparent in her Honour's decision. 35 The appellant did provide a short written submission by way of a letter that was handed up to the Court. It said: 1. As seen in my records on two occasions the Courts ordered that the [Authority] should determine my case according to law. 2. However, I believe that these orders flowed from a jurisdictional error made by the relevant authorities. 3. This meant to my understanding that a wrong question or issue was raised and relevant material was not applied in determining my application to seek asylum in Australia under this country's laws and regulations. 4. Other members of my family had been arrested and tortured by the Sri Lankan army as they believed that they were supporters of the LTTE, which fought for a separate State in the North and East of Sri Lanka. 5. References in this regard are made to pages 71, 72, 73, 74, 75, 76 and 78 of the Court book. 6. The United Nations has reported that over 40,000 Sri Lankan Tamils had been killed. These killings were done under the provisions the [PTA] and the regulations framed under the Public Security Act, which allows persons to be arrested and these persons not to be produced before the courts of law and if they are killed the bodies of such persons are disposed without a proper inquiry as to the cause of death. 36 However the appellant's general submissions that a wrong question was asked or issue raised, and that relevant material was not applied, have no apparent foundation in the material before the Court. 37 As for the submission that members of the appellant's family were arrested and tortured, the pages of the Court Book that are referred to are parts of the statutory declaration that the appellant gave in 2015 in support of his claim to protection as initially assessed by the delegate of the Minister. It thus refers to the appellant's historical claims of arrest and torture, which were considered thoroughly by the Authority and in large part accepted by it. But that does not address the main reason why the Authority affirmed the decision not to grant the appellant a protection visa, namely that the situation in Sri Lanka had changed since those incidents and since the appellant left in 2012. 38 I also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention in terms of any concerns or doubts about the primary judge's decision. Counsel stated that there were not.

Conclusion 39 The appellant has not established that the primary judge made any error in the decision under appeal. The appeal will be dismissed, with costs. 40 The Minister sought a lump sum costs order of $5,000. That is less than the amount provided for in Schedule 3 item 15.2 of the Federal Court Rules 2011 (Cth) in respect of migration appeals that are dismissed after hearing. The appellant did not make any submission in reply to that proposal. The amount is reasonable and an order for costs in the sum of $5,000 will be made. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

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