BXZ16 v Minister for Immigration and Border Protection

The Amended Notice of Appeal 27 The Amended Notice of Appeal alleges the following ground and particulars: The FCC erred in failing to find jurisdictional error in the decision of the IAA in circumstances where the IAA made unreasonable and/or irrational and/or illogical findings of fact and/or findings of fact not supported by evidence and failed to address the full integers of the Appellant's claim in relation to the prospect and degree of harm to the Appellant upon his return to Sri Lanka as a failed asylum seeker, who had unlawfully departed Sri Lanka twice contrary to the provisions of the Immigrants and Emigrants Act 1948 (Sri Lanka) (I & E Act), and who was a child. Particulars of jurisdictional error by IAA a) The IAA's findings (AB213 [39]-[40]; AB219 [69]-AB221 [83]) amount to inconsistent findings of fact in relation to the probability of the occurrence of harm and degree of harm to the Appellant if returned to Sri Lanka. b) To the extent that the IAA found that the Appellant would be released without being charged with an offence under the I&E Act on his return having departed unlawfully twice (AB220 [77]), or would be unlikely to be charged (AB220 [78]), the findings are unreasonable and/or illogical and/or irrational and/or not supported by evidence. c) The finding that any period of detention or imprisonment would be brief or short was unreasonable and/or illogical and/or irrational and/or not supported by evidence (AB221 [81]; AB222 [89]-[90]). d) The findings that the Appellant "would not be the subject of any" and "will not face a" custodial sentence are unreasonable and/or illogical and/or irrational and/or without evidence (AB221 [82]; AB223 [91]). e) The IAA failed to take into account relevant considerations, namely the probability and gravity of the consequence of the feared harm - that the Appellant was at risk of significant harm, being detained as a child in prison with adults, including convicted adult prisoners (elevating the Appellant's vulnerability in relation to the other generalised poor conditions of prison, and the risk of being a victim of violence, and exacerbating any length of custody). (See AB128-129). Particulars of error by FCC a) The FCC erred in failing to detect the unreasonable and/or irrational and/or illogical factual findings and/or factual findings without evidence in the decision of the IAA: see AB241-243 [22]-[25]. b) The FCC erred in failing to detect the IAA's error in not considering the full integers of the Appellant's claim. c) The FCC erred at AB252 [53] in finding that the IAA "considered the circumstances and consequences of the Appellant's detention and the fact that he was a minor and, therefore, undertook a qualitative assessment of whether the applicant would suffer significant harm because of his imprisonment." 28 The ground alleges: (a) unreasonableness, irrationality and illogicality in fact-finding by the IAA, focussing on the IAA's consideration of the harm the appellant would face on return to Sri Lanka as a failed asylum seeker who had twice unlawfully departed the country; and (b) that the IAA failed to consider all of the integers of the appellant's claim as to the prospect and risk of the harm which he would face as a failed asylum seeker who had twice unlawfully departed Sri Lanka and who was a child.

Particular (a) - Allegation of inconsistent findings of fact 29 To establish illogicality and irrationality in the IAA's fact finding the appellant relies, first, on an asserted inconsistency in the IAA's findings in relation to whether on return to Sri Lanka the appellant would be charged under the I&E Act . The IAA said (at [77]-[78]): 77. The applicant was returned to Sri Lanka in May 2013 and claimed that he was held overnight but released the next day, without charge, after his father arrived and spoke to someone. The applicant was a minor then and is still a minor. There is no basis for expecting that he would be treated any differently upon his return to Sri Lanka for a second time… 78. Given the applicant's illegal departure from Sri Lanka and having considered the country information above, I accept that, upon his return to Sri Lanka, the applicant could be charged under the I&E Act. I note that he was not charged the first time and given he is still a minor, it is unlikely that he would be charged next time either. If the applicant arrives over a weekend or long weekend, there is a chance that he may be held, for a short time, at a nearby prison until he appears before a magistrate. (Emphasis added.) 30 The appellant argues that the IAA found (at [78]) that it was unlikely that the appellant would be charged under the I&E Act if returned to Sri Lanka, which it submits stands in contradiction to other findings which the IAA made, including the following: (a) the appellant "would be identified by the authorities as having twice departed Sri Lanka illegally...arrested by the police at the airport [and]...transported to the closest Magistrates Court at the first available opportunity, after which custody and responsibility will shift to the court or prison services and at this point the Court will determine the next steps for each individual" (at [74]); (b) "those arrested can remain in police custody at the CID Airport Office for up to 24 hours and that in the event a magistrate is not available before this time, for example due to a weekend or public holiday, those charged may be held at a nearby prison"(at [75]); (c) "no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. In such cases, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment" (at [76]); and (d) "I have also accepted that the applicant will be charged with an offence under the I&E Act, that he will not face a custodial sentence and that he could be fined for his illegal departure" (at [91]). 31 The appellant contends that the inconsistency of the findings meant that it is unclear whether or not the IAA concluded that the appellant would be charged under the I&E Act if returned to Sri Lanka, which he submits undermined the IAA's conclusions in relation to the risk of harm which the appellant faces. The appellant argues that it is unclear which findings of fact truly operated on the IAA's mind which supports a conclusion that this aspect of the decision was unreasonable, illogical, irrational and without evidence. He submits that this inconsistency is substantial and can be distinguished from asserted errors which require reading a decision "with an eye keenly attuned to error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ) and at 288 (Kirby J).

Consideration 32 For the appellant to succeed in establishing that the IAA's decision is vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, the appellant must show "extreme" illogicality or irrationality "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal": see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [47] (Griffiths, Perry and Bromwich JJ) citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [148] (Robertson J); SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84] (McKerracher J, with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [52] (Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that the overarching question is whether the decision was affected by jurisdictional error: ARG15 at [47] citing SZRKT at [151]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [113] (Beech-Jones J) and the cases referred to therein. 33 I am not persuaded that the inconsistency in fact-finding on which the appellant relies is sufficient to show jurisdictional error. 34 First, on a fair reading of its reasons, the IAA found it was unlikely that the appellant would be charged under the I&E Act for illegal departure from Sri Lanka (at [77]-[78]). The IAA accepted that the appellant "could" be charged, but considered it to be "unlikely that he would be charged next time either" given that he was not charged the first time he was returned after departing illegally as a minor and he was also a minor when he departed the second time. 35 On a fair reading the finding (at [91]) that the appellant "will" be charged should be understood as poor use of language rather than the IAA denying what it had earlier said at [78] - that he "could" be charged but it was unlikely. The IAA's reasons in this regard are not entirely harmonious but, on a fair reading, it assessed the risk of harm the appellant faced: (a) if he was not charged - in which case he might be held overnight and released the next day (at [77]) or if he arrived over a weekend or long weekend he might be held for a short time in a prison (at [78]), or (b) if he was charged - in which case if he pleaded guilty he would be held for a short time and issued a fine and released, or if he pleaded not guilty he would be held for a short time and released on his own personal surety (at [82] and [91]). 36 Second, even if the asserted inconsistency be accepted, it falls a long way short of demonstrating that the decision was unreasonable by reason of that aspect of its reasons: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 367 ALR 465 at [85] (Besanko, Banks-Smith and Colvin JJ); Pennie v Minister for Home Affairs [2019] FCAFC 129 at [24] (Davies, Derrington and Colvin JJ). Under either scenario the IAA considered the appellant might face a short period of detention and no ongoing custodial sentence. In the IAA's view the two scenarios differed only in that, if the appellant was charged, he would be required to pay a fine on top of a short period of detention overnight or over a weekend. 37 Therefore, even if it is accepted that the IAA made inconsistent findings about whether the appellant would be charged under the I&E Act, the IAA assessed the risk of harm the appellant would face on the more serious of the two possible outcomes; that he would be charged. It decided (at [80]-[83]) that if charged he would merely be fined and would not face a custodial sentence. The appellant failed to establish that the asserted error is material in the sense that it deprived him of a realistic possibility of a different outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Hossain) at [25] and [30] (Kiefel CJ, Gageler and Keane JJ), because even on the more serious of the two possible outcomes the IAA considered the harm the appellant might suffer fell short of constituting harm which engaged Australia's protection obligations under s 36 of the Act. 38 No jurisdictional error is therefore disclosed and the first particular to the appeal must be rejected.

Particular (b) - Finding about the appellant being released without charge 39 Under the second particular the appellant alleges that the IAA's finding that the appellant would not be charged or was unlikely to be charged with an offence under the I&E Act was unreasonable, irrational and illogical and that the evidence did not support such a finding. 40 The appellant submits that the IAA did not refer to any evidence in relation to how recidivist offenders are dealt with, and argues the obvious inference is that recidivist offenders are much more likely to be prosecuted when detected, with detection in the present case being inevitable. He contends that the country information was to the effect that upon detection of an illegal departee, arrest and prosecution was an automatic consequence. 41 The appellant says that the finding that there was no prospect of him being prosecuted or that prosecution was unlikely, lacked an evidentiary foundation. He contends that there was no evidence before the IAA as to how children were generally dealt with under Sri Lankan criminal law, and the IAA merely relied on the singular event of what occurred upon the appellant's first return to Sri Lanka as a 12 year-old. The appellant further submits that, on a closer analysis of the evidence as to what occurred on his first return to Sri Lanka, the evidence in fact supported a conclusion that he was not charged on that occasion. He contends that his account that he was "arrested by police" and held in "prison" is more consistent with the fact of him having been charged, albeit released after being held overnight in prison, rather than not being charged at all. The country information also said that the routine process for persons considered to have illegally departed was arrest by police, charge, detention in prison pending appearance before a magistrate, and then release with a fine shortly thereafter. 42 Finally, the appellant argues that, the IAA having found that the Sri Lankan authorities are likely to identify him as someone who had twice departed Sri Lanka illegally, then overlooked the prospect of the appellant being charged in relation to both illegal departures on any future return.

Consideration 43 I do not accept the appellant's contentions. On the facts as found by the IAA the appellant had not been charged under the I&E Act following his first illegal departure, because he was a minor. That conclusion was open to the IAA on the evidence and it provides a rational basis for its conclusion that he would not be charged or at least it was unlikely that he would be charged for the second illegal departure a few months later when he was still only 12 years old. In my view that finding cannot be said to be so unreasonable that no reasonable decision-maker could arrive at the same decision: see Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]-[135] (Crennan and Bell JJ). 44 There was no requirement upon the IAA to gather country information which specifically went to how the Sri Lankan authorities might treat children who have breached the I&E Act, or what might happen to people who had twice illegally departed the country. It was enough for the IAA to consider the country information before it and form a view as to what might occur in the appellant's case. Based upon the IAA's finding as to what had occurred when the appellant was first returned to Sri Lanka it does not demonstrate extreme illogicality or irrationality to conclude that, because he was a young minor when he departed the second time (and thus not personally responsible for his actions) it was likely that the Sri Lankan authorities would treat him in the same manner as the first time. 45 Further, this particular suffers from the same problem as particular (a). Even if it is unreasonable, irrational or illogical for the IAA to conclude the appellant would not be charged or was unlikely to be charged, the IAA assessed the risk of harm the appellant would face on return on the basis that he would be charged and decided (at [80]-[83]) that he would merely be fined and would not face a custodial sentence. Thus the appellant failed to establish that the asserted error is material in the sense that it deprived him of a realistic possibility of a different outcome: Hossain at [25], [30]. 46 The second particular must also be rejected.

Particulars (c) and (d) - Findings that any period of detention or imprisonment would be brief or short and that there is no prospect the appellant would face a custodial sentence 47 By the third and fourth particulars of the appeal the appellant contends that the evidence before the IAA could not rationally or reasonably support a finding that the appellant was unlikely to face the consequences of a charge for breach of the I&E Act, including detention in a prison and the potential for a custodial penalty on sentence. This contention is predicated on the appellant being someone who illegally departed from Sri Lanka on two occasions and who was therefore a recidivist offender. The appellant argues that it should be inferred that recidivist offenders will be treated more harshly than first-time offenders, and that his case could not rationally be treated by the IAA as if it were in the same category as those which include a single illegal departure. 48 He argues that the IAA's deference to the country information - including that "in most cases" illegal departees will be granted bail, will not suffer custodial sentences and will only be fined - was misplaced in the absence of any specific country information regarding recidivists. The appellant submits that his being a second-offender was a salient and unusual feature of his claim and country information of greater generality could not subsume it. 49 The appellant contends that it was legally unreasonable for the IAA to conclude that a custodial sentence would be off the cards for someone who illegally departed the country twice, when the description of the stated purpose for fining offenders is "to act as a deterrent towards joining boat ventures in the future". He submits that s 45(o) of the I&E Act prescribes that in the event of a custodial sentence being imposed, a mandatory minimum term of one year of imprisonment applies (with or without labour according to s 52 of the Sri Lankan Penal Code) which punishment easily rises to the level of serious harm under s 36 of the Act.

Consideration 50 I do not accept the appellant's contentions. 51 This is not a case where the decision-maker failed to comprehend that the person seeking asylum had twice illegally departed Sri Lanka (c.f. BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378). Rather, the IAA acknowledged that the appellant had twice illegally departed Sri Lanka, and on review of the detailed country information about the circumstances which would confront an illegal departee on return to Sri Lanka, the IAA set out what it found would likely occur in the appellant's case. 52 The IAA noted (at [76]) that "Sri Lanka's Attorney-General's Department has advised DFAT that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally". If no illegal departee had ever been given a custodial sentence, the IAA's conclusion that the appellant (who had twice departed illegally) would not be subject to a custodial sentence was one that was open to it. That conclusion was not one which no rational or logical decision-maker could reach on the evidence: see SZMDS at [130]-[135]. 53 The appellant's contention that he would be treated more harshly as a recidivist offender is really just an argument that the IAA arrived at the wrong factual finding, and bespeaks merits review. It does not establish legal unreasonableness. Allusions to the Sri Lankan Penal Code go nowhere in light of the advice DFAT received from the Sri Lanka's Attorney-General's Department. 54 The third and fourth particulars do not disclose jurisdictional error.

Particular (e) - Failing to take into account the probability and gravity of the consequence of the feared harm 55 Under this particular the appellant alleges that the IAA failed to undertake the necessary qualitative assessment and failed to properly consider the circumstances and consequences of his detention and the interplay with his status as a child on return to Sri Lanka. He contends that he is at particular risk of significant harm as a child being detained in prison with adults, including convicted adult prisoners. On his argument, being a child elevated his vulnerability in relation to the other generalised poor conditions of Sri Lankan prisons, and the risk of being a victim of violence or torture or other inhuman or degrading conditions, and exacerbated the duration of any custody to which he will be exposed by way of remand before attending court; remand if bail is refused; or by way of custodial sentence. He cites the decision in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 at [94] (Gageler J) and at [41] (French CJ, Kiefel, Bell and Keane JJ) for the proposition that an assessment of potential harm requires an evaluation of not only the probability of an occurrence but also the severity of the consequence of such an occurrence. 56 The appellant submits that the IAA unreasonably relied on DFAT country information that the "risk of harm for the majority of returnees is now low" and "the risk of torture or mistreatment of those suspected of committing an offence under the I&E Act is low" without taking into account that the appellant was a child. He argues that the IAA overlooked the fact that the appellant was detained for a short time in a prison on his last return, as opposed to being held in police custody at the airport, and failed to take into account the risk of harm that flowed from that. By not referring to the appellant's previous detention in a prison, or his vulnerability as a child, the IAA failed to exercise its jurisdiction by failing to consider the full integers of his claim, which squarely arose on the materials: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]).

Consideration 57 I do not accept the appellant's contentions. 58 First, the IAA's reasons are replete with examples which show that it understood that, if returned to Sri Lanka, the appellant would return as a minor. 59 Second, the IAA was not required to refer in its reasons to every piece of evidence and every contention made by the appellant: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). The IAA did not err by not referring to the appellant's previous short detention when returned the first time, or his vulnerability as a child, when the thrust of its decision was that if the appellant was charged he would be remanded in detention for only a short period, probably overnight. 60 Third, on a fair reading, it is plain that the IAA recognised that prison conditions in Sri Lanka are harsh, including through overcrowding, poor sanitation and a lack of resources (at [90]). It did not however consider that such conditions, for the short period the appellant was likely to endure them, constituted serious or significant harm. Further, the IAA noted that laws of general application such as the I&E Act in relation to persons who had illegally departed will not ordinarily constitute persecution under the Act because they do not constitute discrimination for a Refugees Convention reason. 61 Fourth, the IAA clearly understood that the risks of harm that the appellant might face upon return through any period of detention were heightened because of his youth. For example, the IAA found (at [81]): …Even if the applicant, a minor, were held over a weekend or public holiday until seen by a magistrate, the applicant would only face a brief period in detention. Even having regard to poor conditions and the applicant's age, I do not consider that a brief period in detention, to which the applicant may be subject, would constitute the level of threat to his life or liberty, or to significant physical harassment or ill-treatment under s 5J(5) of the Act or otherwise amount to serious harm. (Emphasis added.) 62 The IAA concluded (at [83]): I have considered the applicant's cumulative circumstances including that he is a young Tamil of the Pentecostal Christian faith and that he departed Sri Lanka illegally twice and will be returning to Sri Lanka as a failed asylum seeker for the second time. Even having regard to his cumulative circumstances, I am not satisfied that there is a real chance that the applicant will face persecution on return to Sri Lanka now or in the reasonably foreseeable future. (Emphasis added.) 63 On a fair reading the IAA did not ignore or disavow the appellant's previous detention or his particular vulnerabilities, it simply found that the cumulative circumstances did not equate to a real chance that the appellant will face persecution on return to Sri Lanka. 64 This particular does not disclose jurisdictional error on the IAA's behalf.

Conclusion 65 It is accordingly appropriate to dismiss the appeal with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.