BWX15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-02-09|Before: Murphy J

The appeal be dismissed.
The Appellant pay the First Respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The appellant is a 54-year-old man of Tamil ethnicity and Hindu faith from the Northern Province of Sri Lanka. He arrived in Australia by boat on 9 August 2012, without a visa. On 15 January 2013 he applied for a protection visa on the basis that he is a person in respect of whom Australia owes obligations of protection pursuant to ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). 2 The appellant appeals from orders of the Federal Circuit Court to dismiss his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal): see BWX15 v Minister for Immigration & Border Protection [2017] FCCA 117. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellant a Protection (Class XA) visa pursuant to the Act. 3 For the reasons set out below I have made orders to dismiss the appeal.

The application to the Tribunal 9 On 28 March 2014 the appellant applied to the Tribunal for review of the delegate's decision. In the application to the Tribunal the appellant was represented by the Refugee & Immigration Legal Centre Inc (RILC). 10 On 19 August 2015 RILC filed written submissions on the appellant's behalf in which the appellant claimed that there is a real chance that he would face serious harm from: (a) the Sri Lankan authorities; and/or (b) paramilitary groups in Sri Lanka on account of the following grounds, taken either individually or cumulatively: (a) his Tamil ethnicity; (b) his actual or imputed political opinion in support of the LTTE or against the Sri Lankan authorities or other paramilitary groups on account of his Tamil ethnicity, his origins in Killinochichi in the Northern Province of Sri Lanka, and his departure from Sri Lanka and unsuccessful asylum claim in Australia; (c) his membership of the social group "wealthy Tamils who worked overseas"; and/or (d) his membership of the social group "returned failed Tamil asylum seekers". 11 The appellant also relied upon the complementary protection regime under s 36(2)(aa) of the Act and submitted that if he was returned to Sri Lanka there was a real risk that he would be subjected to torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment. 12 The Tribunal heard the application on 21 August 2015 and, on the same day, affirmed the delegate's decision to refuse the protection visa.

The application to the Federal Circuit Court 13 On 16 September 2015 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. He had legal representation in drafting the application for review and at the Court hearing. 14 The appellant's amended application for review set out six grounds, but in written submissions the appellant's counsel only pressed two grounds. 15 On 25 January 2017 the Federal Circuit Court found no error in the Tribunal's decision and dismissed the application.

THE APPEAL TO THIS COURT 16 By notice of appeal dated 8 February 2017 the appellant appeals to this Court. The notice contains the following two grounds of appeal and particulars: Ground 1 The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me. Particulars The respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reason but as inhumane. Ground 2 The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA. Particulars The respondent did not raise/or put to me in writing parts of the adverse decision for me to comment on in writing. 17 Neither of those grounds were raised before the Federal Circuit Court. 18 The notice of appeal also states that "in addition to the above grounds, I still rely on the grounds and the particulars for the judicial review with the Federal Court of Australia". It became clear in the hearing that the reference to the Federal Court was erroneous, and the appellant intended to rely on the two grounds of review he alleged before the Federal Circuit Court. For convenience I shall call these grounds three and four. 19 Grounds three and four, together with the particulars, are as follows: (a) Ground three: The Tribunal committed jurisdictional error by making findings that were unreasonable and/or without sufficient evidence. Particulars The Tribunal noted the Department of Foreign Affairs and Trade ('DFAT') Country Report - Sri Lanka (16 February 2016), and said: 'The DFAT country report referred to above provides that there is no difference in the return of deportees or returnees whether they are Singhalese, [sic] Tamil or Muslim. DFAT have stated that there are relatively few allegations of torture or mistreatment and that although they do not routinely monitor the situation of returnees, they assess that the risk of torture or mistreatment for the great majority of returnees is low. I have considered the country information submitted by the agents but I have given greater weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government.' This 'country information' from DFAT could not reasonably be regarded as basis [sic] for rejecting the applicant's claim to have a well founded fear of suffering persecution by torture or mistreatment because: (a) 'DFAT does not routinely monitor the situation of returnees'; (b) 'the country information submitted by the agents' included: (i) a report of Australian official inaction in Colombo when a report of torture was made; (ii) an opinion of why 'One could not say that nothing happened simply because nothing was reported'; (iii) a decision by the Refugee Review Tribunal in another matter about the situation of returnees to Sri Lanka and which gave reasons why it was 'inappropriate to be sanguine' about the situation of a person returned to Sri Lanka; (iv) a report by the Bar Human Rights Committee of England and Wales based on 40 sworn statements of witnesses relating to abduction, detention and torture including detention after return to their home areas of Sri Lanka; (v) a report by Amnesty International, quoted by the Immigration and Refugee Board of Canada, to the effect that: 'the government of Sri Lanka has a history of arresting and detaining rejected Sri Lankan asylum seekers on their return and we aware [sic] of cases of people being tortured'; (vi) a Freedom from Torture report in October 2014 to the UN Human Rights Committee referring to documented torture of individuals, and saying that: 'This evidence indicates that the risk of torture for Sri Lankan Tamils returning from the UK... has not diminished and may be increasing' (vii) a Freedom from Torture report cited by UK authorities which detailed medico-legal reports of torture of 35 asylum seekers returned to Sri Lanka between May 2009 and early 2011, which covered not only the situation of returnees at the airport, but also in the days, weeks, months and years after return." (b) Ground four: The Tribunal fell into jurisdictional error by failing to consider relevant considerations including all of the Applicant's claims, integers of claims, material questions of fact raised by the material before the Tribunal, and all information before the Tribunal. Particulars (a) The Tribunal considered that the applicant would return as a person who left Sri Lanka legally so 'that the illegal departure laws are not applicable to him', but did not consider whether he would face a risk of special scrutiny and consequent ill-treatment or harm, whether at the airport or later, because: (i) he would be returning over ten years after his departure from Sri Lanka; (ii) he would not have his passport with him to show that he departed legally, and there was no evidence about whether there would still be a record of his legal departure from Sri Lanka which the Sri Lanka government would have or accept; (b) The Tribunal said: 'that when he [the applicant] returns to his home area, there is a real chance that he will [be] contacted at his home by the military or the police for further registration. I do not consider such treatment amounts to either serious harm or significant harm...' but the Tribunal did not consider whether during or after such contact the applicant may suffer mistreatment or harm, although that was a claim explicitly raised by the reports before the Tribunal. 20 The appellant was not legally represented in the appeal. He did not comply with directions to put on written submissions and he made short oral submissions at the hearing that added little to the notice of appeal itself.

The proposed new grounds of appeal 21 Parties to an appeal are ordinarily bound by the way the case was put below (Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 at [161]-[162]), but the Court has discretion to permit new grounds to be raised on appeal where it is expedient and in the interests of justice to do so. In Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ) the High Court said: More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; O'Brien v Komesaroff (1982) 150 CLR 310 at 319. 22 In my view it is expedient and in the interests of justice to grant the appellant leave to raise the new grounds on appeal. Essentially this is because: (a) the appellant has a great deal at stake in this appeal. If leave is not granted he will lose the opportunity to put arguments in support of his case. That may mean that he is returned to Sri Lanka where he fears persecution, torture, cruel and inhuman treatment or punishment or degrading treatment or punishment; (b) the question of prejudice is an important consideration: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [48] (Kiefel, Weinberg and Stone JJ). The Minister did not contend that he would suffer any prejudice if leave was given to raise the new grounds of appeal; conversely, the appellant's prejudice may be serious; (c) the issues in the appeal involve an analysis of the Tribunal decision and questions of law. The factual findings made by the Tribunal are not central to the new grounds, and they could not have been met by calling evidence before the Federal Circuit Court; (d) having regard to the existing grounds of appeal, the new grounds require little additional use of the resources of the respondent or the Court; and (e) the Minister did not oppose a grant of leave.

Ground one 23 This ground of appeal has no merit. The notice of appeal alleges that the Tribunal made a finding that if the appellant were returned to Sri Lanka he would be held in degrading conditions in prison because he had left the country illegally. There is, however, no such finding in the Tribunal's reasons and the appellant made no submissions addressed to this ground. 24 Further, insofar as the appellant's claim relied on the complementary protection regime under s 36(2)(aa) of the Act, I can see nothing to indicate that the Tribunal failed to adequately deal with it. Under the heading "Tamil failed asylum seeker" (at paragraphs 45 to 51 of its reasons) the Tribunal considered the risk that the appellant would be tortured or mistreated if he were returned to Sri Lanka. Based on country information provided by the Department of Foreign Affairs and Trade (DFAT) the Tribunal found that risk to be low. The Tribunal noted that the risk of harm in this regard is higher where the returnee has an actual or suspected affiliation with the LTTE, but found that did not apply to the appellant. It found that returnees generally are not regarded as having links with the LTTE, or as being opposed to the government simply because they have been in Australia. It accepted that there is a real chance that the appellant will be contacted by the military or police if he is returned to Sri Lanka, but considered that such treatment does not amount to either serious or significant harm. 25 I dismiss ground one of the appeal.

Ground two 26 Under this ground the appellant alleges that the Tribunal failed to put to him parts of its adverse decision for him to comment upon, as required by s 424AA. However, the appellant did not particularise any matter which the Tribunal was obliged to, but did not, put to him. There is nothing in the material to indicate that the Tribunal erred in this regard. 27 I dismiss ground two of the appeal.

Ground three 28 The Tribunal rejected the appellant's claims that, if he were returned to Sri Lanka, he had a well-founded fear of persecution by reason of his membership of the social group "Tamil failed asylum seeker", doing so on the basis of country information provided by DFAT. 29 Before the Federal Circuit Court the appellant submitted that the Tribunal fell into error by making findings that were contrary to probative evidence and were unreasonable, because the findings relied on country information provided by DFAT to the exclusion of country information provided by the appellant. He maintains that submission in the appeal to this Court. 30 The appellant relied on paragraphs 45 and 46 of the Tribunal's reasons. At paragraph 45 the Tribunal extracted the country information provided by DFAT and at paragraph 46 the Tribunal said: The DFAT country information referred to above provides that there is no difference in the treatment of deportees or returnees whether they are Singhalese [sic], Tamil or Muslim. DFAT have stated that there are relatively few allegations of torture or mistreatment and that although they do not routinely monitor the situation of returnees, they assess that the risk of torture or mistreatment for the great majority of returnees is low. I have considered the country information submitted by the agents but I have given greater weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government. 31 The appellant argued that the country information provided by DFAT could not reasonably be regarded as a basis for rejecting the appellant's fear of suffering persecution by torture or mistreatment if he were returned to Sri Lanka, because: (a) the country information provided by DFAT said that "DFAT does not routinely monitor the situation of returnees"; and (b) the appellant provided contrary country information which included a Refugee Review Tribunal decision which gave reasons why it was "inappropriate to be sanguine" about the situation of returnees to Sri Lanka, and a number of reports from government and non-government agencies detailing incidents of torture and mistreatment of returnees to Sri Lanka. The reports included: (i) a report of Australian official inaction in Colombo when a report of torture was made; (ii) an opinion that "One could not say that nothing happened simply because nothing was reported"; (iii) a report by the Bar Human Rights Committee of England and Wales based on 40 sworn statements of witnesses relating to abduction, detention and torture including detention of returnees after return to their home areas of Sri Lanka; (iv) a report by Amnesty International stating that the Sri Lankan government has a history of arresting and detaining rejected Sri Lankan asylum seekers and that they are aware of cases of people being tortured; (v) a Freedom From Torture report to the UN Homan Rights Committee stating that the risk of torture for Sri Lankan Tamils returning from the UK has not diminished and may be increasing; and (vi) a Freedom From Torture report which detailed medico-legal reports of torture of 35 asylum seekers returned to Sri Lanka between May 2009 and early 2011. 32 In submissions before the Federal Circuit Court the appellant accepted that it was a matter for the Tribunal as to what weight it gave to the evidence, but argued that the Tribunal had no logically probative evidence for rejecting his claim to have a well-founded fear of persecution if he were returned to Sri Lanka. 33 The primary judge rejected the appellant's claim in this regard. After setting out the relevant extracts from the Tribunal's decision, her Honour said (at [19]) that the country information relied upon by the Tribunal provided "an evident and intelligible justification" on which to reject the appellant's claim, and that it could not be said that the Tribunal acted unreasonably by relying upon the country information provided by DFAT. 34 Her Honour said (at [20]) that the Tribunal properly considered the appellant's claims by assessing the country information before it, and engaged in "a cogent process of weighing the evidence". Her Honour said that the question of the accuracy of the country information provided by DFAT and the country information provided by the appellant was for the Tribunal to determine and that it was not for the Court to make its own assessment as to which of the country information is to be preferred. 35 Jurisdictional error will be demonstrated where the Tribunal makes a finding that is illogical or unreasonable, in the sense that the decision is one at which no rational or logical decision maker could have arrived on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [130] (Crennan and Bell JJ). Legal unreasonableness may also arise where a decision is arbitrary, capricious or without common sense or lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [28] per French CJ, [76] per Hayne, Kiefel and Bell JJ and [105] per Gageler J; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44] (Allsop CJ, Robertson and Mortimer JJ). Such unreasonableness will constitute a failure by the Tribunal to discharge its statutory task. 36 The country information provided by DFAT included that: (a) "there have been thousands of asylum seekers returned to Sri Lanka since 2009... but relatively few allegations of torture or mistreatment"; (b) "DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low"; (c) [t]he risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people smuggling or terrorism offences"; (d) Sri Lanka's constitution entitles any citizen to "the freedom to return to Sri Lanka". It is only an offence under the Immigrants and Emigrants Act to depart Sri Lanka other than by an official port of entry or exit; (e) involuntary returnees are processed by government and intelligence officials and airport staff at the airport, which can take several hours. Australian immigration department officials also endeavour to meet all commercial flights carrying involuntary returnees on arrival at the airport; (f) Sri Lankan police will investigate returnees travelling on temporary travel documents, which includes interviewing the returnee, contacting their claimed home suburb or town police, contacting their neighbours and family and checking criminal and court records; and (g) DFAT assesses that detainees are not subject to mistreatment during their processing at the airport. 37 As I have noted above, the country information provided by the appellant painted quite a different picture. However, as Crennan and Bell JJ observed in SZMDS (at [131]): …the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. (Emphasis added.) 38 In my view the primary judge was correct to conclude that the country information provided by DFAT provided an evident and intelligible justification for the Tribunal's findings. Reasonable minds may differ with respect to the weight to be given to the competing country information but it cannot be said that the Tribunal's finding lacked any reasonable basis. It is not for the Court to make its own assessment as to which of the country information is to be preferred: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ). 39 It is noteworthy too that the Tribunal expressly said (at paragraph 46) that it had considered the country information provided by the appellant but it had given greater weight to that provided by DFAT because "it is recent, authoritative and [DFAT] have been specifically charged with giving advice to the Australian government." The Tribunal was not required to give a line by line refutation of the appellant's evidence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [64]-[65] (McHugh J). 40 I dismiss ground three of the appeal.

Ground four 41 Under this ground the appellant advanced the broad allegation that the Tribunal erred by failing to consider all relevant considerations including all of the appellant's claims, integers of claims, and material questions of fact raised by the material before the Tribunal. However, the appellant particularised this ground only by reference to the following two alleged errors: (a) although the Tribunal considered that the appellant would return to Sri Lanka as a person who had left legally and therefore the illegal departure laws are not applicable to him, it failed to consider whether the appellant would face a risk of special scrutiny and consequent ill treatment and harm if he were returned to Sri Lanka because he was returning over ten years after his departure, without a passport and there was no evidence as to whether there would be a record of his departure from Sri Lanka (the first alleged error); and (b) in finding that there was a real chance that the appellant would be contacted by the military or the police for further registration if he was returned to Sri Lanka and that such treatment would not amount to either serious or significant harm, the Tribunal failed to consider whether during or after such contact the appellant may suffer mistreatment or harm in prison or detention, or whether he may spend a short or long period in prison (the second alleged error). The appellant contended that this claim was raised by experts before the Tribunal, and by reference to documented cases including medico-legal reports of the detention and torture of people returned to Sri Lanka. 42 Both the alleged errors revolve around paragraph 49 of the Tribunal's reasons, where the Tribunal said: The applicant told the Tribunal that he departed Sri Lanka using his own passport in 2006, so I find that the illegal departure laws are not applicable to him and there is no real chance that he would not [sic] be suspected of any offences under the Immigrants and Emigrants Act. Given his past history, I find that there is no real chance that he would be suspected of having committed a serious crime such as people smuggling or terrorism. I accept that when the applicant returns he will be questioned by the authorities and his identity checked. I also accept that when he returns to his home area, there is a real chance that he will [be] contacted at his home by the military or the police for further registration. I do not consider such treatment amounts to either serious harm or significant harm and considering the country information as a whole (including DFAT's assessment that the risk of torture or mistreatment for the great majority of returnees is low), I find the chance or risk he will be seriously harmed or significantly harmed is remote. 43 In regards to the first alleged error, the Tribunal considered (at paragraphs 45 to 51) whether the appellant would face harm in Sri Lanka as a returned failed asylum seeker. As I have said, the country information provided by DFAT included that there are "relatively few allegations or torture or mistreatment" for returnees, and that an actual or perceived association with the LTTE placed individuals at a higher risk of harm, but the appellant would not be regarded as having links to the LTTE or to be opposed generally to the government. The Tribunal noted that because the appellant departed using his own passport the illegal departure laws were not applicable to him and that there is no real chance he would be suspected of offences under the Sri Lankan Immigrants and Emigrants Act or of having committed a serious crime. 44 Importantly, the Tribunal said (at paragraph 49) that considering the country information as a whole "the chance or risk [the appellant] will be seriously harmed or significantly harmed is remote". It concluded at paragraphs 50 and 51 that: Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group... Based on his individual circumstances and the independent country information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm on this basis. 45 The primary judge rejected the first alleged error (at [21]), doing so on the basis that the Tribunal was "clearly aware that the Applicant had been absent from Sri Lanka for a considerable period", that it "considered in detail the claims of the Applicant and rejected them" and "expressly referred to country information concerning returnees travelling on 'temporary travel documents'". 46 I can see no error in her Honour's conclusion in that regard. It is clear from the Tribunal's reasons that it was aware of how long the appellant had been absent from Sri Lanka (see, for example, paragraphs 24 and 25), and aware that the appellant would be returning on temporary travel documents (see paragraph 45). It is implicit in the reasons that the Tribunal considered the risk of the harm to the appellant in the context of him returning ten years after his departure, without a passport and where there may be no record of his legal departure. 47 In regards to the second alleged error, on a fair reading of the Tribunal's reasons it concluded that the appellant would not suffer any period of imprisonment or detention capable of constituting serious or significant harm. 48 Further, as the primary judge said (at [22]), the Tribunal's finding that the appellant would not face serious harm or significant harm if contacted by the military or the police was not confined in time and was a "broad based finding" which encompassed consideration of any mistreatment or harm the appellant may suffer in that regard. I can see no error in her Honour's conclusion. The Tribunal found that the appellant did not face a real risk of either serious or significant harm, and that conclusion was open to it. 49 I dismiss ground four of the appeal.

CONCLUSION 50 I have made orders to dismiss the appeal with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

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