BWN15 v Minister for Immigration and Border Protection

JUDICIAL REVIEW 10 The appellant appeared self-represented before the primary judge, as he did on this appeal. In those proceedings, the burden was on the appellant to establish that the Tribunal's decision was affected by jurisdictional error: s 474 of the Act; Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). 11 The grounds for judicial review specified on the originating application were expressed as follows: 1. The Tribunal's decision was affected by an error of law. 2. The Tribunal failed to give sufficient weight to country information regarding harassment faced by Tamil men with an imputed political opinion against the government. 3. The Tribunal did not correctly apply the country information to my particular claims. 4. The Tribunal erred in finding that my claims do not qualify for complimentary protection, specifically; the Tribunal was incorrect in holding that I will not face significant harm on account of my illegal departure from Sri Lanka and my status as a failed asylum seeker. The Tribunal was incorrect in holding that the laws against people leaving without authorisation were not discriminatory. 12 The appellant commenced his application for judicial review outside the time limit specified in s 477(1) of the Act. The primary judge allowed an application for an extension of time in which to commence the proceedings and proceeded to determine the application on its merits. 13 The primary judge correctly interpreted the first ground of review as introductory to submissions made in relation to the second to fourth grounds. As to the remaining grounds, his Honour said: 20. In relation to ground 2 the applicant said that the Tribunal failed to give sufficient weight to country information about the harassment of Tamil men. He said that he had told the Tribunal that as a Tamil man he was likely to be harassed at the airport on return by the Sri Lankan authorities. He said, accurately, that the Tribunal considered he would be likely to be released after questioning at the airport but he then asked 'What will happen after I am released?' The applicant explained that he was worried that he may be harmed by 'unknown people'. 21. In relation to ground 3 the applicant said that the Tribunal did not correctly apply the country information to his particular claims. The applicant said that the Tribunal took the view that there was currently peace in Sri Lanka but he said that he was a 'wanted person' and at risk because 'disappearances' continued. He asked the court to consider reports from the United Nations about the current situation in Sri Lanka. In response to a question from me about whether the Tribunal had considered this information he confirmed that he had raised this material with the Tribunal and the Tribunal had discussed it with him. This would appear to be a reference to an Office of the United Nations High Commissioner for Refugees ('UNHCR') document, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, discussed at paragraph [56] of the Tribunal decision. That document referred to a UNHCR finding that 75% of returnees were contacted in their home area by the military or police but not reporting any further harm to those returnees. 22. The applicant also said that 'unknown individuals' had searched for him after his departure from Sri Lanka in 2012. This was a reference to a claim rejected by the Tribunal. 23. In relation to ground 4 the applicant submitted that the Tribunal erred in rejecting his claim for complimentary protection on the basis of (1) his illegal departure, (2) his status as a failed asylum seeker and (3) the claimed discriminatory basis of the Sri Lankan migration laws. 24. The applicant did not identify any error other than his disagreement with the Tribunal's failure to accept that he was at risk of 'disappearance' on return to Sri Lanka. In substance, the applicant made the same submission he made in relation to grounds 2 and 3. 14 His Honour concluded (at [26]): In my view, the grounds of review do not disclose any jurisdictional error. The Tribunal's conclusions, including its finding on credibility, appear to have had an evident and intelligible basis and, accordingly, were open to be made. The applicant's criticism of the weight given to and treatment of country information by the Tribunal does not constitute jurisdictional error: NAHI v Minister for Immigration [2004] FCAFC 10 at [11].

GROUNDS OF APPEAL 15 The grounds of appeal are expressed as follows (without alteration): 1. I request the Court to consider my grounds in my Federal Circuit Court application and in my Federal Court application because I am a self represented applicant and on the ground of fair justice and equity I plead with the Court to consider my grounds articulated in the current appeal as well. 2. The Court below erred in finding that the Refugee Review Tribunal had failed to properly consider the Appellant's claims under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 ('the Act'). 3. The Court below erred in finding that the Tribunal failed to consider relevant consideration and claims articulated by the applicant directly or implicitly under the Refugee Convention and Complementary Protection ground. A. The applicant claim that that he would face harm as a result of business disputes or commercial disputes. The Tribunal considered this claim under the Refugee Convention ground. (see AAT decision para 24). However, the Tribunal did not consider or assess whether the applicant would face a real risk of significant harm including torture, degrading, cruel treatment as a result of the business disputes. (See AAT decision para 79-87) Accordingly, it is submitted that the Tribunal failed to consider the above claim which is articulated by the appellant in his protection visa matter. B. The Tribunal failed to consider whether the applicant would be able pursue his profession as a fisherman and whether the applicant would face severe discrimination and therefore, he would face serious harm which would deny his capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. This is a very relevant consideration should have been considered when assessing under the Refugee Convention since the applicant claimed that he was threaten to stop his profession. C. The applicant in his statement articulated that people knew that that he was in Australia and two men came and threatened his wife demanding money. It seems that the appellant claimed (at least implicitly) that he would be considered as a wealthy person and as a result of that he would be targeted to extort money in Sri Lanka. The applicant in his statement does not state that the threat of demanding money came from the police or authorities and therefore, it can be assumed that he articulated that he would face harm and extortion threat from anyone which may include Sinhalese or criminal gang. The Tribunal failed to engage in active intellectual process to discuss and then to assess the above claim articulated by the appellant. D. The Tribunal failed to consider applicant's claim that he would face extortion as a result of his particular circumstance as a wealthy Sri Lankan due to his stay in Australia under the Complementary Protection ground. E. The Tribunal failed to consider the applicant's particular social group as a Young Tamil of Fisherman community in Sri Lanka. F. The Tribunal failed to consider the applicant claim that he would face harm from Sinhalese men in Sri Lanka. The applicant submission dated 17 December 2013 mentioned the above claim which the Tribunal overlooked when assessing the applicant's claim under the Refugee Convention reasons and under the Complementary Protection ground. G. The Tribunal discussed and assess what would happen to the applicant if he returned to Sri Lanka as a result of illegal departure from Sri Lanka. However, when considering the issue of bail and financial guarantee, the Tribunal failed to consider whether the applicant has any means to provide such financial guarantee and if he failed to provide whether he would face longer imprisonment and if in that case, whether longer jail term would cause degrading and inhuman treatment due to the conditions in the prison. 4. The Tribunal failed to comply with s424(A) or s424(AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. The Tribunal took into account information that had been given by the Appellant orally to the Minister's Department in determining whether the Appellant was a truthful witness. That information was not put to the Appellant in accordance with s424(A) ort 424 (AA) of the Act. 16 The first two paragraphs are to be understood as making a broad assertion of appealable error for which better particulars are given in the remaining paragraphs. Those remaining paragraphs allege jurisdictional error on the part of the Tribunal. In light of the appellant's self-represented status, they may be fairly understood as asserting appealable error by the primary judge, being a failure to identify jurisdictional error on the part of the Tribunal of the kind specified. 17 The difficulty for the appellant is that the jurisdictional errors alleged in the third and fourth paragraphs of the grounds of review were not raised in the proceedings before the primary judge. The appellant requires leave to introduce the arguments on this appeal. 18 Leave should only be granted if it be "expedient in the interests of justice" to do so: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543 at [18]. The principles guiding the discretion to grant leave are otherwise well-settled: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] to [48]. Among other things, it is relevant to consider the reason why the arguments were not advanced in the proceedings below, the apparent merits of the arguments and the prejudice that might be suffered by either party should leave be granted or refused as the case may be. 19 As I have said, the appellant was self-represented in the proceedings before the primary judge. It may be inferred from the manner in which his grounds for judicial review were expressed that he had no legal assistance of any kind in the preparation and presentation of his case. That circumstance weighs in favour of the grant of leave: Maan v Minister for Immigration and Border Protection (2017) 253 FCR 564. 20 The Minister does not submit that he would suffer prejudice should leave be granted. That, too, weighs in favour of leave being granted. 21 I nonetheless would refuse leave to introduce the grounds on the basis that they are without merit. 22 Proposed ground 3A must fail because the Tribunal did consider (at [80] of its reasons) whether the claims in relation to the appellant's business disputes fulfilled the Complementary Protection Criterion. 23 Proposed ground 3B has no merit for two reasons. First, the appellant made no claim to derive subsistence by working as a fisherman in Sri Lanka. His stated occupation was that of a fish trader. Second, the Tribunal did consider whether the appellant faced a risk to his subsistence but did not accept that he did. The Tribunal found that the appellant had been able to earn a living between 2008 and 2012 in his seasonal fish trading business and by doing other work, including as a truck driver. It concluded that if the appellant were to return to Sri Lanka he could continue to work in and around his home area and so derive a living. 24 As to proposed grounds 3C and 3D, it is true that the Tribunal was required to consider and deal with a case raised by the material and evidence before it : Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). As the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]: … There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). … It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 25 The appellant did not make any express claim to the effect that he feared to be at risk of extortion because he would be perceived as wealthy, whether by reason of his having travelled to Australia or otherwise. Nor has it been shown that such a claim was raised "at least implicitly" as alleged in this proposed ground of appeal. 26 The appellant claimed to fear being taken away for interrogation and never returning. The Tribunal noted that when asked by the Minister's delegate why he thought the men had visited him, the appellant said "Maybe (because) I'm Tamil" or otherwise said the visit might be explained because he had been buying fish from outside of his home town. When asked by a delegate whether the interest was related to the events at the Mullaitivu marketplace, the appellant had responded "Maybe". The claim that his home had been visited by unknown individuals was not advanced, whether expressly or impliedly, as a claim that the individuals were motivated to extort money from the appellant. 27 The Tribunal rejected the appellant's claim that individuals had come to his home at all. In so doing, it was not obliged to consider whether the unknown individuals might be motivated to extort money from the appellant because he was perceived to be wealthy. 28 Proposed ground 3E has no merit because the appellant made no claim to be a member of a social group constituted of young Tamil fishermen in Sri Lanka. The appellant advanced his claim on the basis that he had suffered discrimination as a fish trader. The Tribunal did give consideration to the events that had occurred in the course of the appellant's fish trade business, and accepted that the events in 2008 and 2012 had occurred as he had claimed. The Tribunal otherwise gave consideration (at [70] - [77] of its reasons) to the appellant's status as a Tamil male and concluded that he did not satisfy either the Refugee Criterion or the Complementary Protection Criterion by virtue of his Tamil ethnicity or his status as a young Tamil male. 29 Proposed ground 3F makes reference to a written submission dated 17 December 2013. The submission states: Jan-2012: Threats from Sinhalese men 21. Sometime in about January 2012, the Applicant began receiving threats from Sinhalese men in the marketplace in Mullaitivu. This marketplace was in a Tamil village however the Applicant was the only Tamil who bought fish for trading purposes. Tamils were required to obtain a Ministry of Defence pass to be able to enter the marketplace. On each occasion the Applicant went to buy fish from these markets, the same men would threaten the Applicant to not come to that area to buy fish or else they would 'get rid of him'. 22. The Applicant continued to travel to Mullaitivu as he did not take these threats too seriously and did not think these men could harm him. 30 The submission then proceeds to describe the incident in which the appellant was assaulted at the Mullaitivu marketplace in February 2012. 31 Read in its proper context, the appellant's claim to have received threats from Sinhalese men is to be understood as providing context for his claim that he had been assaulted at the Mullaitivu marketplace. The Tribunal accepted the assault occurred and that it occurred in the context of a disagreement with local Sinhalese businessmen when the appellant was attempting to purchase dried fish for his employer. The Tribunal continued (at [22]): … The Tribunal considers that their intention is clear from their statement when they told him not to come there and he should not do so. The applicant's evidence at the hearing suggested that the Sinhalese men were only concerned with this as a local issue. The Tribunal accepts that this was primarily a business dispute although it also accepts that the applicant's Tamil ethnicity make him additionally vulnerable and was likely a significant reason for why they took advantage of him. The Tribunal accepts that the applicant complained to [the local authorities] about his treatment and that the [authorities] sided with the Sinhalese businessmen and warned the applicant that he should not return to the area. 32 It is clear that the Tribunal considered and dealt with the claim advanced by the appellant to the effect that he had been subjected to physical assault by Sinhalese businessmen and that the assaults were connected, at least in part, to his Tamil ethnicity. It was unnecessary for the Tribunal to consider, as a distinct claim, the circumstance that the assault (causing actual harm) had been preceded by threats. In any event, although there is no express reference in the Tribunal's reasons to the preceding threats in 2012, it should not be inferred that the Tribunal did not have regard to that part of the written submission in which reference to the threats was made. As I have said, the Tribunal dealt with and accepted that this aspect of the events occurred as the appellant had claimed, but went on to affirm the delegate's decision on the basis that, notwithstanding the 2012 assault, the appellant did not satisfy the criteria for the grant of the visa. That distinct aspect of the Tribunal's reasoning is not impugned. 33 Proposed ground 3G concerns the appellant's claim to fear harm if returned to Sri Lanka in that he would be arrested, interrogated and imprisoned for charges relating to his illegal departure from the country. The Tribunal gave detailed consideration to that claim at [58] to [69] of its reasons (in respect of the Refugee Criterion) and at [81] to [85] of its reasons (in respect of the Complementary Protection Criterion). It concluded that the appellant was liable to be charged in relation to his illegal departure from Sri Lanka under the Immigrants and Emigrants Act. Under that Act, it is an offence to depart the country other than by way of an official port of entry or exit. 34 The Tribunal referred (at [59]) to country information provided by the Department of Foreign Affairs and Trade (DFAT), which stated: 5.27 Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time-for example, because of a weekend or public holiday-those charged are held at the nearby Negombo Prison. 35 The DFAT report went on to state "In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor". 36 On the basis of that material, the Tribunal concluded (at [60]): The Tribunal accepts that on return to Sri Lanka the applicant, like all persons who breach the I & E Act, will be detained for questioning, and security and character checks will be undertaken. He will be remanded and charged with an offence under s.45(1)(b) of the I & E Act because he departed illegally. This is consistent with some of the reports referred to in the representative's submission and the applicant's oral evidence about returnees from Australia being detained. The applicant's representative submitted that media reports suggest the applicant may be remanded for up to 15 days. However, a closer reading of those reports suggest that the returnees remanded for longer periods, such as 15 days or two weeks, were those who had attempted to leave Sri Lanka previously or were distinguished from the other returnees (eg being involved in people smuggling). There is no evidence before the Tribunal, and the applicant has not claimed, that he was an organiser or people smuggler or that there are any outstanding criminal warrants for him. Therefore the Tribunal finds that any period of detention will be short and the applicant will be released on bail, with a family member as surety, to appear in court at a future date. (footnotes omitted) 37 The Tribunal went on to say that if the appellant was convicted of an offence under the Immigrants and Emigrants Act, then he would most likely be ordered to pay a fine, but the chance of being imprisoned upon his conviction was "remote". The Tribunal said that the applicant had made no claim that he would be unable to pay the fine. 38 For the Minister it is submitted that the ground in 3G of the Notice of Appeal may be understood as a complaint that the appellant had not been put on notice of the Tribunal's finding that, upon his return to Sri Lanka, the appellant would only be detained for a short period. That is not a correct characterisation of the appellant's complaint. In its ordinary language, this ground may be understood as alleging jurisdictional error in the nature of a failure to consider a relevant consideration in arriving at the finding that the appellant's detention on remand would be short: namely, the capacity of the appellant's family to provide a financial guarantee and so secure his release on bail. It may also be understood as an assertion that the Tribunal wrongly assumed that the appellant would have the capacity to pay in the absence of evidence bearing on that issue. 39 The Minister then submits that this ground is unmeritorious because the Tribunal "did not refer to any requirement for a financial guarantee" and so it could not be said that the Tribunal erred by failing to consider whether the appellant's family had the financial means to provide one. I reject that submission. The Tribunal's conclusion that the appellant would be detained on remand for only a short period wholly depended upon its finding, based on country information, to the effect that the appellant would be released "on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor". 40 The country information itself may nor may not be interpreted to mean that it would be necessary for a family member to provide a financial guarantee for the appellant's personal recognisance and so is ambiguous. The reasons of the Tribunal do not address or resolve the ambiguity issue and so it is unclear which interpretation the Tribunal has adopted. 41 In my view, in order to support its conclusion that the appellant would not be retained for long on remand, it would have been necessary for the Tribunal to reason either that no financial guarantee was required, or that a financial guarantee was required and the appellant or his family had the financial capacity to provide one. In either case, the Tribunal was required to disclose its reasoning and to refer to the evidence on which its findings of fact on the question was based: s 430 of the Act. 42 I infer that the Tribunal has not given consideration to the question of whether a financial guarantee would be required and so has not proceeded to consider whether, if one be required, the appellant, through his own means or that of his family, could provide one. In my view, there is error affecting this aspect of the Tribunal's decision. 43 Notwithstanding the identification of that error, proposed ground 3G cannot succeed. That is because the reasons of the Tribunal disclose independent bases for affirming the delegate's decision, both in respect of the Refugee Criterion and in respect of the Complementary Protection Criterion. 44 The independent basis for affirming the decision in relation to the Refugee Criterion is that detention of the appellant on charges relating to his illegal departure from the country would not constitute persecution, firstly because the appellant would not be targeted by reference to his Tamil ethnicity or his actual or perceived connections with the LTTE, and secondly because the Immigrants and Emigrants Act was a law of general application and was not administrated in a discriminatory manner. That aspect of the Tribunal's reasoning is not challenged on the appeal. 45 In relation to the Complementary Protection Criterion, the Tribunal said that any harm that might be suffered by the appellant in the course of his incarceration would not be intentionally inflicted and so could not constitute "significant harm". That aspect of the Tribunal's reasons is in accordance with decided authority: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [26] - [29] (Kiefel CJ, Nettle and Gordon JJ). It is not challenged on this appeal. 46 In light of these independent bases for affirming the delegate's decision, the error affecting the finding that the appellant might be imprisoned for only a short period of time is not to be characterised as a material error affecting the exercise of the Tribunal's jurisdiction. As Kiefel CJ, Gageler and Keane JJ said in Hossain v Minister for Immigration and Border Protection [2018] HCA 34: 30 Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of 'the possibility of a successful outcome', or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was 'so insignificant that the failure to take it into account could not have materially affected' the decision that was made. 31 Thus, as it was put in Wei v Minister for Immigration & Border Protection, '[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act'. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. (footnotes omitted) 47 As to proposed ground 4, the appellant does not specify the information the Tribunal is said to have taken into account and in respect of which he was denied an opportunity to comment. Leave should not be granted to introduce the ground simply because it lacks sufficient particularity. 48 If it be assumed that the information to which the ground refers is that set out in the delegate's decision, the ground must be rejected on its merits. The appellant himself provided the delegate's reasons to the Tribunal in the course of the review. 49 It seems that an issue of credibility arose before the Tribunal because the appellant had advanced, before the Tribunal but not before the delegate, an alternative reason as to why unidentified men might be motivated to visit his home. The Tribunal asked the appellant why he had not given that alternative explanation to the delegate. In essence, the Tribunal made an assessment of the appellant's credibility founded upon a failure by the appellant to give the same information to the delegate. That absence of evidence is not "information" within the meaning of s 424A of the Act. As the High Court said in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [18]: Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute 'information'. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word 'information': … does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc … If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant 'information' was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. (footnote omitted) 50 Accordingly, I will not grant leave to the appellant to rely upon proposed ground 4 or upon any of the other arguments sought to be introduced for the first time on the appeal. 51 It follows that the appeal must be dismissed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.