BSB16 v Minister for Immigration and Citizenship [2025] FCA 998

1. The appellant is a Sri Lankan national of Tamil ethnicity, who arrived in Australia in September 2012 as an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth). In October 2015, the appellant lodged an application for a Safe Haven Enterprise visa and was interviewed in relation to that application on 16 December 2015. On 3 May 2016, a delegate of the first respondent refused the application and the matter was referred to the Immigration Assessment Authority. On 9 June 2016, the IAA affirmed the delegate's decision. On 7 July 2016, the appellant lodged an application for judicial review in the former Federal Circuit Court of Australia. On 11 August 2021, the FCCA dismissed the appellant's application: BSB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1830 (primary judgment or J).
2. The notice of appeal contained two grounds of appeal. However, in the appellant's submissions he propounded five grounds. The Minister did not oppose leave being granted for the appellant to rely on those grounds given they were either grounds that were argued before the primary judge or fell within a slightly larger orbit to that argued below. The issue for resolution by this Court is whether the primary judge erred in deciding to dismiss the appellant's review of the Authority's decision. For the reasons which follow, it will be apparent that the appellant made no attempt to impugn the reasons of the primary judge. To the extent that the appellant re-agitated failed grounds as were before the primary judge, I can discern no error.
3. For the reasons set out below, the appeal must be dismissed.

1. The appellant's claims are comprehensively set out by the Authority at [8]. The Authority, in a detailed way, dealt with each of the appellant's claims. The Authority accepted certain of the appellant's claims and rejected others.
2. The Authority was not satisfied that the appellant had a profile such that he would be of interest to Sri Lankan authorities now, or in the reasonably foreseeable future: IAA[73]-[74].
3. The Authority then dealt with the appellant's claim that he feared harm on the basis that he would return to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally: IAA[75]-[88]. The Authority accepted that the appellant would be returning to Sri Lanka without documentation. By reference to the most recent country information, the Authority gave reasons as to the procedure upon return as a result of the appellant being an illegal departee. The Authority was not satisfied that the appellant would be dealt with in a discriminatory manner and that his prosecution under a law of general application amounted to persecution. Further, even having regard to the poor conditions in custody, the Authority was not satisfied that this would constitute the level of threat to the appellant's life or liberty that would amount to serious harm: IAA[85]-[86].
4. Ultimately, the Authority found that the appellant did not meet the definition of a "refugee" or meet the criteria under s 36(2)(a) of the Act: IAA[89]. For the same reasons as set out above, the Authority was not satisfied that, as a necessary foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm. The Authority therefore found that the appellant does not meet the criteria in s 36(2)(aa) of the Act: IAA[99].

Application before and reasons of the primary judge

1. On 7 July 2016, the appellant filed an initiating application in the FCCA, which contained four grounds of review, which are reproduced below:

1. The Authority misconstrued or misapplied the words "intentionally inflicted" and "intended to cause" in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" ins 5(1) of the Act in assessing the Applicant's detention.

Particulars

a. The Tribunal erred in failing to properly assess the application and in accordance with the guidelines.

2. The Authority committed jurisdictional error by erroneously rejecting claims in entirety without proper consideration.

Particulars

a. The Tribunal did not engage with the claims but simply irrationally and I or illogically rejected the claims in global fashion.

3. The Authority denied the Applicant procedural fairness in its consideration of the claims.

Particulars

a. The Tribunal did not engage with the claims but simply irrationally and I or illogically rejected the claims in global fashion.

4. The Authority fell into jurisdictional error in assessing the Applicant's detention (at [80]) and denied the Applicant procedural fairness.

Particulars

a. The Tribunal did not engage with the detention issue.

b. The Tribunal presumed that the Applicant would be granted bail.

c. The Tribunal did not address whether the Applicant had capacity to meet mail.

1. The primary judge understood that by ground one, the appellant was asserting that the Authority failed to properly assess the risk for the appellant if returned by reason of the "substandard conditions" experienced whilst awaiting being placed before a magistrate. It was submitted that the experience of these conditions would involve "intentional" infliction of cruel, inhuman or degrading treatment. The primary judge identified relevant dicta in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (per Keifel CJ, Gordon and Nettle JJ at [28]-[29]). The High Court held that it was open for a Tribunal to conclude that it could not be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation when dealing with an alleged fear of future incarceration and the associated prison conditions. Accordingly, the primary judge was satisfied that ground one fails.
2. In relation to ground two, the primary judge considered the Authority engaged in a detailed and comprehensive analysis of the appellant's claims and made findings, including adverse findings, that were open to it: IAA[32]. The primary judge considered it incorrect to suggest the Authority rejected the appellant's claims in their entirety, as the Authority accepted certain aspects of the appellant's claims: IAA[33]. Accordingly, ground two fails.
3. In relation to ground three, the primary judge acknowledged that ground three was unparticularised and there was no material before the Court that would indicate that any procedural fairness requirement was not complied with: IAA[34].
4. The primary judge identified that ground four appeared to be a variation of ground one. The primary judge found that the Authority, at [75]-[89], engaged in a comprehensive examination of the appellant's fears of harm if returned to Sri Lanka as a failed asylum seeker. Relevant country information was cited, at IAA[83], that indicated if the appellant pleaded guilty he would be given a small fine and released with time to pay the fine. If the appellant pleaded not guilty, he would be released immediately on a personal security or may be required to have a family member act as a guarantor. The primary judge was satisfied that the Authority engaged with this issue in some detail and on the basis of country information was satisfied the appellant would be able to be released after he appeared before a magistrate, even if he pleaded not guilty. Further this was a law of general application and does not discriminate against the appellant personally. Accordingly, the primary judge was satisfied that ground four fails: IAA[36].

1. As adverted to above, the appellant moved on the five grounds of appeal as articulated in his submissions which were as follows:

Ground one

The Authority misconstrued or misapplied the words "intentionally inflicted" and "intended to cause" in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" ins 5(1) of the Act in assessing the Applicant's detention.

Particulars

The Tribunal erred in failing to properly assess the application and in accordance with the guidelines.

Ground two

The Authority committed jurisdictional error by erroneously rejecting claims in entirety without proper consideration.

Particulars

The Tribunal did not engage with the claims but simply irrationally and/or illogically rejected the claims in global fashion.

Ground 3

The IAA failed to consider following of applicant's claims:

1. Applicant belonging to a Martyr family.

2. Applicant's uncles' involvement with the LTTE.

Ground 4

The Authority denied the Applicant procedural fairness in its consideration of the claims.

Particulars

The Tribunal did not engage with the claims but simply irrationally and I or illogically rejected the claims in global fashion.

Ground five

The Authority fell into jurisdictional error in assessing the Applicant's detention (at [80]) and denied the Applicant procedural fairness.

Particulars

a. The Tribunal did not engage with the detention issue.

b. The Tribunal presumed that the Applicant would be granted bail.

c. The Tribunal did not address whether the Applicant had capacity to meet mail.

1. It is apparent from these grounds that there is a substantial overlap between them and those argued before the primary judge.

1. The appellant made no submissions which elaborated upon these grounds nor identified how the primary judge erred in his resolution of the like grounds. At hearing, the appellant submitted that there were many errors in the various decisions but was unable to explain what they were. The appellant explained the difficulty of his plight in being unable to furnish evidence to support his claims because he had to escape Sri Lanka. The appellant described the very real hardship he has suffered from the uncertainty of his plight by reason of his fears of harm if he were to be returned to Sri Lanka and that he seeks justice. However, the appellant was unable to identify, with any precision, what the legal error was that attended the primary judge's reasons (including any failure to identify error in the reasons of the Authority).

1. It is not sufficient, when seeking to appeal against the judgment of a reviewing court, to merely restate the unsuccessful grounds for review below. It is necessary that the appellant directs the Court's attention to how the primary judge erred in his or her decision.
2. In any event, I have undertaken a careful review of the appellant's submissions, the Authority's decision, the application before the primary judge, the evidence before the primary judge and the primary judgment. For the following reasons the appeal must fail.

1. By proposed ground one the appellant contends that the Authority misapplied certain phrases in the definition of cruel or inhuman treatment or punishment, and degrading treatment or punishment in the Act when assessing the possible risk of the appellant's detention upon return. This ground comprises a re-agitation of the first ground of review below. No submission was made as to how the Authority had misapplied itself by reference to any part of the Authority's reasons nor how the primary judge erred in his consideration of this ground below. The Authority considered whether the appellant would be detained upon return to Sri Lanka (IAA[54]), and with reference to country information was not satisfied that the appellant faced a real chance of persecution on the basis of his Tamil race, or "his Tamil race and the fact he originates from the east" (IAA[59]). The primary judge considered and applied applicable authority. The appellant has failed to articulate any appealable error and the ground must fail.

1. Ground two concerns the Authority's purported error in rejecting certain of the appellant's claims in entirety without proper consideration. Although this ground was raised before the primary judge, it identifies the following new particulars:

(a) the Authority erroneously found that the appellant had not previously claimed to have been extorted;

(b) the Authority failed to consider that the appellant is Hindu; and

(c) the Authority failed to consider the appellant's profile as a young, Tamil male from the Eastern province.

1. I would note in this context that the Authority considered each of the appellant's claims and made detailed factual findings with respect to them. Notably, the Authority did not reject all of the appellant's claims and accepted some of them (for example, that the appellant's uncles were LTTE members who were killed in the war and his father provided assistance to the LTTE). However, the Authority did reject the majority of the appellant's claims that would found a basis for the requisite claim of serious harm including that the Karuna group approached him and he provided them with assistance (IAA[22]), that he was abducted and detained (IAA[29], that the authorities visited his home after he departed Sri Lanka (IAA[36]) and that his brother had been threatened (IAA[39])

1. As to the first claim, this concerns another aspect of the Authority's reasons where it did not accept that the appellant's father was being threatened or that someone was demanding money from him: IAA[40]. Paragraph [40] is extracted as follows:

Money being demanded from his father

At the end of the SHEV interview, the applicant was asked if he had put forward all of his claims for protection and he replied in the affirmative. He was then asked if he had anything else he wanted to say. The applicant said "they are still threatening my family and have beaten my father and they are demanding ransom money from my family. I don't know what to do. I don't know whether to live or die at the moment". Neither the applicant nor the representative provided further information about this claim during the interview. The interview closed with the applicant being told that if he provided any further information to DIBP prior to a decision being made, it would be considered. No written submission was made to DIBP following the SHEV interview. This issue was not raised in the 2013 statement or in the SHEV statement and was not mentioned in the IAA submission. At the SHEV interview, the applicant said his parents and sisters are still living in the family home, although his brother has gone to Qatar. I do not consider it plausible that the applicant's parents and sisters would continue to live in the family home if his father were being threatened and asked for money. On the evidence before me, I do not accept that the applicant's father is being threatened or that someone is demanding money from him.

1. What is apparent from these reasons, is that the Authority considered where the appellant had (and had not) previously made this claim. The appellant appears to submit that there was a failure by the Authority to take into account that the appellant had asserted, in his entry interview, as part of information provided as to the cost of his travel to Australia, that "They are demanding the money and threatening my brother who is 18 saying they will kill him if they don't get the money". I do not accept that the Authority was required to take this into account. The Authority was referring to a claim concerning threats as against his father not his brother. The Authority took into account that no such claim had been made in the appellant's initial 2013 statement, his SHEV statement or in the IAA submission. Whilst it may be accepted that the Authority is required to take into account claims which "clearly emerge" from the materials before it (even if they are not expressly articulated) (AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]), I do not consider this statement in the entry interview clearly emerged as a claim and comprised the claim regarding the appellant's father which is the subject of the impugned paragraph.

1. Contrary to the appellant's contention, the Authority expressly referred to and accepted that the appellant was Hindu: IAA[8]-[9]. Further, in support of this claim, the appellant relied upon para 3.15 of the DFAT Country Report Sri Lanka, dated 18 December 2015. It may be accepted, by operation of para [3] of Ministerial Direction No 56 - Consideration of Protection Visa applications, that the Authority was required to take into account any DFAT Report where relevant, in making its submission. Para 3.15 stated:

In a 2013 report, the Centre for Policy Alternatives (CPA) listed 65 cases of attacks on places of worship throughout the country between May 2009 and January 2013. The majority of cases reported by CPA were against evangelical Christian churches. The majority of incidents, where perpetrators were identified, were instances of Sinhala Buddhist attacks on other religious places of worship. The Sirisena government has publicly said it is committed to ethnic and religious reconciliation.

1. No submission was made as to why this aspect of the DFAT report was relevant in the Authority's assessment. The appellant had made no claim before the Authority, that by reason of his religion he feared harm. No such submission was contained in the lengthy submission to the Authority prepared on his behalf by a Migration Agent. The Authority's "decision must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process": S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 per Gleeson CJ at [1].

1. The Authority's decision reveals that it did give detailed consideration to the appellant's profile as a Tamil male from the Eastern Province (IAA[48]-[59]). It appears to be suggested that there was no consideration of him being "a young" Tamil male. No submission was made as to why his youth was required to be considered and failure to consider it could found a claim of jurisdictional error. Even if there was a failure to consider this fact, that fact only, without an articulation of why it comprises jurisdictional error, cannot be accepted.

1. Ground three alleges that the Authority failed to consider the following claims:

(a) that the appellant belonged to a "Martyr" family; and

(b) the appellant's uncle's involvement with the LTTE.

1. These claims must be rejected. The Authority considered the appellant's claim to be a member of a family of a martyr (IAA[33]). No submission was made as to who the "martyr(s)" were, but the Authority had accepted that his two maternal uncles were LTTE members and that they had been shot dead before he was born (IAA[10]).

1. Ground four contends that the Authority denied the appellant procedural fairness in its consideration of the claims. Although this ground was raised before the primary judge it raises new particulars namely: (a) that the Authority did not engage with the claims but rejected the claims in a global fashion; and (b) the Authority failed to consider country information as required by Direction No 56.
2. As to the first basis, I reject it. As adverted to above, the Authority considered each of the claims, accepted some and rejected others (IAA[10]-[41]). I do not accept that the Authority's reasons can in any way be characterised as a denial of procedural fairness because of the alleged rejection of his claims "in a global fashion".
3. As to the alleged failure to consider country information required by the Direction No 56, it is apparent that the Authority considered numerous aspects of the DFAT Report when considering the appellant's claims that he feared harm from the authorities because he is a Tamil male from the Eastern Province (IAA[48]-[57]). The Authority thereafter considered many other United Nations materials when considering the appellant's claims of persecution by reason of prior affiliation with the LTTE (IAA[60]-[74]).
4. The appellant argued that the Authority should have considered two paragraphs of the DFAT Report (para 3.36 and 3.37). Paragraph 3.36 was expressly referred to by the Authority (IAA[67]). Paragraph 3.37 provides illustrations of "monitoring" referred to in the previous paragraph. No submission was made as to why para 3.37 needed to be specifically referred to.

1. The appellant contends that the Authority failed in assessing the appellant's "detention" and in particular that it presumed the appellant would be granted bail and did not address whether the appellant had capacity to meet bail.
2. On the issue of bail, the Authority referred to country information which stated that where a person is charged under the Immigrants and Emigrants Act (I&E Act) for leaving Sri Lanka illegally, if they plead guilty, they will be fined and released and that, alternatively, if an accused pleads not guilty, they will be granted bail on a personal surety or may be required to have a family member act as a guarantor (IAA[83]). Subsequently, the IAA found at, IAA[87], that the appellant will either be issued a fine and be released, or he would be released on his own personal surety.
3. Accordingly, the IAA did consider whether the appellant would be bailed and found that, given that he would only need to provide a personal surety, he would be released.

1. For these reasons the appeal must be dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.