BYR16 v Minister for Immigration and Border Protection

Background Facts 3 The appellant is a citizen of Sri Lanka. He applied for a protection visa in December 2012, after entering Australia as an irregular maritime arrival on 20 June 2012. 4 The FCCA judge recorded that the appellant's claims to fear harm in Sri Lanka were advanced at an entry interview on 13 August 2012; in his visa application and accompanying Statement of Claims dated 30 November 2012; at an interview with the Minister's delegate on 26 June 2013; in written submissions to the tribunal dated 13 November 2013; at a hearing before the tribunal on 20 March 2015 and in undated submissions provided to the tribunal on 24 March 2015. The tribunal to which the appellant made his submissions and gave evidence was the Refugee Review Tribunal which, on 1 July 2015, merged with the Tribunal. 5 The FCCA judge recorded that the appellant claimed to fear harm on the basis of his Tamil ethnicity (being a young male Tamil from the Northern province of Sri Lanka), an imputed political opinion or connection to the Liberation Tigers of Tamil Eelam ("LTTE"), as a failed asylum seeker and as a result of having left Sri Lanka illegally. 6 The FCCA judge summarised the appellant's factual claims in support of his claims to fear harm as follows: (1) The appellant was of Tamil ethnicity and Hindu faith. He lived in Uddappu but worked as a fisherman in Mullaitivu. (2) In May 2012, when he was fishing in Mullaitivu, he was investigated by Navy officers. The Navy officers asked him whether he supported the LTTE and took his ID card. (3) Two days later, the Navy officers came to his house and questioned his aunt and uncle. They demanded that the appellant report to the head officer at the Navy camp the following day, or they would come and arrest him. The appellant complied, but the head officer was not there. (4) The Navy officers returned to the appellant's home, accused him of not complying with their orders and demanded that he report to the Navy camp the next day. The Navy officers returned his ID card to him on this occasion. (5) His uncle told him that remaining in Mullaitivu was dangerous, so he arranged to depart Sri Lanka. (6) Members of the appellant's family were members of the LTTE. This included his sister-in-law who had been released from jail. (7) The appellant had been asked by the LTTE to unload foodstuffs from their boats. (8) The appellant feared he would be detained and severely beaten by the Sri Lankan Army, the Navy and associated paramilitary groups, such as the Karuna Group and the Eelam People's Democratic Party. 7 On 9 October 2013, the Minister's delegate refused the appellant's application for a protection visa. The delegate found that the appellant was not a credible witness. 8 On about 17 October 2013, the appellant applied to the Refugee Review Tribunal for a review of the delegate's decision. 9 On 20 March 2015, the appellant participated in a hearing of the Refugee Review Tribunal by video conference with the assistance of a Tamil interpreter and a registered migration agent. 10 Following the merger of the Refugee Review Tribunal with the Tribunal, it was the Tribunal which dismissed the appellant's application to the Refugee Review Tribunal.

Tribunal's Decision 11 The FCCA judge noted that the Tribunal also found that the appellant was not a credible witness. His Honour summarised the Tribunal's assessment of the appellant's claims at [6] to [12] of his Honour's reasons. 12 At [13], the FCCA judge recorded that, considering the appellant's claims individually and cumulatively, the Tribunal found that he did not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.

The FCCA Decision 13 In the FCCA, the appellant advanced the following three grounds of review: 1. The Tribunal failed to consider properly the test whether the [appellant] would suffer serious harm as per sec.91R(2)(a) of the Migration Act( which is a mandatory jurisdictional requirement for the Tribunal to do), as a failed asylum seeker and as a person illegally departed Srilanka. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal 2. The Tribunal constructively failed to exercise its jurisdiction: Particulars a. The [appellant] provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. 3. The Tribunal erred in making unreasonable findings that the [appellant] did not have a material profile Particulars b. Unreasonable finding that neither the [appellant] nor any family members were suspected of being a member of, associated with, or supportive of the LTTE (except for the fact of their Tamil ethnicity) [errors in original] 14 Section 91R (which was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)) provided: Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 15 As to ground 1, at [17] of his Honour's reasons the FCCA judge noted that the appellant had not particularised the ground. His Honour noted the asserted error was not apparent on a fair reading of the decision record. His Honour noted that, to the extent that the appellant sought to assert the error identified by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947; (2014) 229 FCR 477 ("WZAPN v MIBP"), the reasoning in that decision had since been overturned by the High Court of Australia. The FCCA judge noted that, as the High Court made clear in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 ("MIBP v WZAPN"), the Tribunal does not fall into error in treating a period of imprisonment in a qualitative way; such imprisonment does not, of itself, necessarily constitute serious or significant harm and it is open to the Tribunal to evaluate the circumstances of such imprisonment. Thus, the FCCA judge concluded that ground 1 failed to reveal an error in the Tribunal's decision. 16 As to ground 2, at [18], the FCCA judge stated that the appellant had not particularised which documents he asserted the Tribunal did not engage with. Further, his Honour said, there was no evidence that the appellant provided corroborative material to either the delegate or the Tribunal. 17 At [19], the FCCA judge considered that possibility that the appellant intended to argue that the Tribunal did not have regard, or adequate regard, to the appellant's written submissions. The FCCA judge concluded that such a complaint could not succeed. His Honour expressed the view that the Tribunal "evidently engaged with the material before it, including the [appellant's] written submissions and made findings that were open to it on the evidence". His Honour observed that it is well-established that matters of weight to be given to evidence are generally for the Tribunal alone, and that credibility findings, while not immune from judicial review, are generally matters for the Tribunal also. 18 As to ground 3, the FCCA judge said: On a fair reading of the decision record, the Tribunal accepted that the [appellant's] sister-in-law was involved with the LTTE and did not reject the claim that the [appellant] assisted with unloading boats for the LTTE when questioned. However, in light of relevant country information, the Tribunal found that the [appellant's] involvement in LTTE activities did not rise to such a level so as to attract the adverse attention of the authorities. The Tribunal also put to the [appellant] that it was "unsure he had sufficient profile" to be targeted by Sri Lankan authorities, to which he had no comment. The Tribunal's finding was clearly open to it on consideration of the claims and evidence before it. [footnotes omitted] 19 The FCCA judge noted (at [21]) that the Tribunal was entitled to rely on country information to support its finding about the appellant's profile and that the Tribunal's reasons could not be said to lack a logical connection with the evidence. 20 At [22] to [25] of his Honour's reasons, the FCCA judge considered the impact of the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 ("SZTAL"). That case was not explicitly raised by any of the grounds of review. However, it concerned the question of the harm that might be suffered as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, which is a question raised by ground 1. 21 The FCCA judge referred to the Tribunal's findings that it did not accept that the appellant would be singled out or intentionally harmed by the authorities while waiting for bail; that it did not accept that there was any intention on the part of the authorities to significantly harm the appellant while he was detained, and, in particular, that the Tribunal found there was no intention on the part of the authorities to inflict pain, suffering or humiliation on the applicant. 22 The FCCA judge concluded that the tribunal's reasoning was consistent with SZTAL. The FCCA judge observed that SZTAL is the subject of a pending appeal to the High Court of Australia. However, the FCCA judge considered that he should decide the case on the basis of the Full Court decision in SZTAL. The FCCA judge also noted that the outcome of the appeal in SZTAL will not affect this case. That is because the Tribunal was also not satisfied that any aspect of the appellant's treatment as a result of his illegal departure, including his experience in detention, would reach the level of severity required to amount to significant harm as defined in the Act. 23 Accordingly, the FCCA judge concluded that the appellant was unable to establish that the Tribunal's decision was affected by any jurisdictional error. 24 The FCCA judge also considered for himself whether any jurisdictional error was apparent on the face of the available material, because the appellant was self-represented and, in his Honour's assessment "plainly … unable to engage with the legal issues". The FCCA judge stated that he could identify no such error.

Appeal to this Court 25 The appellant did not file written submissions. 26 At the hearing of the appeal, the appellant appeared unrepresented with the assistance of a Tamil interpreter. He made no oral submissions. 27 As the Minister's solicitor submitted, the grounds of appeal essentially re-state the grounds advanced before the FCCA. I accept the written submissions of the Minister which were interpreted to the appellant, and which were as follows: Ground One [23] By Ground One, the appellant contends that the [FCCA judge] erred in not finding that the Tribunal "failed to properly test whether the applicant would suffer serious harm as per S91R(2) of the Act" (errors in original). The appellant has not particularised this ground, nor is the asserted error apparent on a fair reading of the [FCCA] judgment. To the extent that the appellant seeks to assert an error on the part of the Tribunal of the type identified by North J in [WZAPN v MIBP], the [FCCA judge] was correct to hold that the reasoning in that decision has since been overturned. As the High Court made clear in [MIBP v WZAPN], the Tribunal does not fall into error in undertaking a qualitative assessment of loss of liberty for the purpose of the definition in s 91R of the Act; imprisonment does not, of itself, necessarily constitute serious or significant harm and it was open to the Tribunal to evaluate the circumstances of the imprisonment that the appellant might face. In the absence of further particulars, Ground One does not identify any error in the [FCCA judge]'s application of the High Court's decision in [MIBP v WZAPN], nor in his Honour's conclusion that the Tribunal's findings in this respect were open to it. Ground Two [24] Ground Two contends that the [FCCA judge] erred in not holding that the Tribunal "erred in the exercise of its jurisdiction". This ground too is unparticularised. However, to the extent that the appellant contends, as he did in the Court below, that the Tribunal failed to engage in an active intellectual process with respect to documents provided by the appellant, and that the [FCCA judge] erred in not so holding, such a contention cannot be made out. Firstly, there was no evidence before the Court below that the appellant provided corroborative material to the [Minister's delegate] or the Tribunal. As such, the contention that the Tribunal failed to engage with documentary evidence had little practical relevance to the matter, and as the [FCCA judge] held, could not succeed. Secondly, the Tribunal evidently engaged with the material before it, including the [appellant]'s written submissions, and made findings that were open to it on the evidence. Thirdly, it is well-established that matters of weight to be given to evidence and credibility findings are generally matters for the Tribunal alone. As such, no appellable error is revealed in the [FCCA judge]'s reasoning in this respect. Nor does Ground Teo reveal a failure on the part of the [FCCA judge] to identify any other error in the Tribunal's exercise of its jurisdiction. Ground Three [25] Ground Three contends that the [FCCA judge] erred by failing to hold that the Tribunal's findings in respect of the appellant's profile were unreasonable. The Tribunal accepted that the appellant's sister-in-law was involved with the LTTE and did not reject the claim that the appellant assisted with unloading boats for the LTTE (AB 275 at [23]). However, in light of relevant country information, the Tribunal found that the appellant's involvement in LTTE activities did not rise to such a level so as to attract the adverse attention of the authorities (AB 278 at [34]). These findings were clearly open to the Tribunal on consideration of the evidence and claims before it and cannot be said to lack a logical connection with the evidence. Further, the Tribunal was entitled to rely on country information to support its finding in respect of the appellant's profile. In the circumstances, no jurisdictional error is revealed in the Tribunal's findings in relation to the appellant's profile, nor did the [FCCA judge]'s omission to so hold give rise to an appellable error. [footnotes omitted] 28 The appeal must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.