CGV15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant to pay the first respondent's costs fixed in the amount of $6,439. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit of Australia ("FCC") dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister ("the delegate") not to grant the appellant a protection (class XA) visa. 2 In summary, the appellant claimed to fear harm for a reason recognised under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, 1967 ("the Convention"), due to his Tamil ethnicity; an imputed political opinion in support of the Liberation Tigers of Tamil Eelam ("LTTE") and in opposition to the Sri Lankan government; and because of his membership of particular social groups, being "failed asylum seekers returning to Sri Lanka" and "young, single, educated Tamil males". 3 The Tribunal rejected each of these claims. The reasons of the Tribunal record that the Tribunal found inconsistencies in the appellant's evidence, which led the Tribunal to reject factual claims made by the appellant on which his claims for protection were based. One of those factual claims was that, in January 2011, he started working for a soft drinks manufacturer where he and his boss were the only Tamil employees. The appellant claimed that at this time he was harassed by Criminal Investigation Department ("CID") officers and questioned about his history, family and business. The appellant also claimed to have resigned after two months because he no longer felt safe working in the job, and that shortly after his resignation he was again questioned by CID officers. At the hearing before the Tribunal the appellant gave inconsistent evidence regarding when he started working at the soft drink manufacturer and his length of employment there. Taking into consideration this and other inconsistencies in the appellant's evidence regarding his employment in Sri Lanka, the Tribunal did not accept that the appellant had ever worked at the soft drink manufacturer for any period of time. The Tribunal therefore did not accept that the appellant had been questioned and harassed by CID officers as he had claimed. 4 Another factual claim rejected by the Tribunal related to the appellant's arrest in 2005. The Tribunal accepted that the appellant had been arrested in 2005 and detained overnight by police, but did not accept the appellant's evidence about the nature of the charges laid against him. The appellant had claimed he was charged with being affiliated with the LTTE, but the Tribunal rejected that evidence on the basis of that a court document submitted by the appellant, purportedly by way of corroboration, related to property charges and not the asserted charges. 5 The Tribunal's reasons also disclose other inconsistencies and discrepancies in the appellant's evidence which led the Tribunal to hold that his claims regarding repeated enquiries and visits made to him by the army and the CID were not credible. The Tribunal accordingly did not accept that his claim to fear harm for a convention reason. 6 The appellant sought judicial review of the Tribunal's decision in the FCC alleging the general ground that the decision of the Tribunal was affected by error of law and that the Tribunal denied the appellant procedural fairness. The appellant (who represented himself) articulated two arguments in support of those grounds of review and the Minister raised the possibility of a third argument. The first ground related to an allegation that the Tribunal was confused about the appellant's evidence regarding his employment. The FCC concluded that it was clear from paragraph [44] of the Tribunal's reasons that the Tribunal had considered all of the evidence concerning the appellant's employment history and the appellant's potential employment with the soft drink maker at some length and had regard to the various inconsistencies in that evidence. The FCC concluded that it was open on the evidence for the Tribunal to reject the appellant's factual claim based on the inconsistencies in the evidence. 7 The second ground related to the Tribunal's rejection of the appellant's claim with respect to the charges that he said were laid against him when he was arrested in 2005. The FCC likewise concluded that it was open to the Tribunal to reject the appellant's factual claim based on the inconsistencies in the appellant's evidence. The FCC concluded that, in substance, the appellant was seeking a merits review of the findings rather than a judicial review relating to questions of law or process. 8 A potential further ground identified by counsel for the Minister related to the Tribunal's consideration as to whether the appellant might suffer harm in the relevant sense for the purpose of the protection visa as a result of being detained if he returns to Sri Lanka due to him having left the country illegally. At [73]-[74], the Tribunal concluded: The Tribunal notes the applicant's illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal's earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that the faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Nor does the Tribunal accept, for the reasons discussed above, that the applicant would be singled out for mistreatment, and suffer significant harm as a result, during any period he is held in remand. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant's charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. As such, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he will suffer significant harm such as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment while in detention, as claimed in the submissions of the applicant's previous adviser. 9 The FCC referred to the Tribunal's reasons at [73], and stated as follows (at [23]-[24]): The Tribunal has expressed in their reasons at paragraph [73], that the potential harm in a prison in Sri Lanka was not significant enough to meet the threshold, and that is any event such harm would not be intentionally imposed. On the existing law, it is necessary that there be a relevant intention, as set out by the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. On this basis, it seems that the Tribunal has made findings within the confines of the existing law and, therefore, there is no judicially reviewable error. 10 The appellant's notice of appeal has raised two grounds as follows: 1. That there is a jurisdictional error in the Federal Circuit Court decision. 2. The reasons provided by the second Respondent to the first Respondent in Support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. [errors in original.] 11 In written submissions filed by the appellant, the appellant alleged that he was denied procedural fairness and made an allegation of bias on the part of the Tribunal which the appellant claimed had pre-judged the merits of his case based on the decision of the delegate. The appellant has also taken issue with the Tribunal's rejection of his factual claim concerning his employment with the soft drink manufacturer. 12 There is no merit in any of these arguments and no appealable error is discernible in the decision of the FCC. Findings of fact including findings of fact relating to credibility are susceptible to judicial review (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146) but, in the present case, no jurisdictional error is apparent. The Tribunal's decision discloses a logical and probative basis for the rejection of the appellant's factual claims and the FCC was correct to dismiss the application for judicial review for the reasons given. 13 The denial of procedural fairness/bias claim also has no substance. The reasons of the Tribunal disclose an independent, careful and reasoned consideration of the evidence before it and the fact that the Tribunal reached the same conclusion as the delegate does not disclose pre-judgment. It was plainly open to the Tribunal to reject the appellant's factual claims having regard to the inconsistencies in his evidence. 14 For the sake of completeness, the FCC correctly held that no jurisdictional error is discernible on the basis of the third possible ground identified by the Minister. I note that the Full Court decision in SZTAL v Minister for Immigration [2016] FCAFC 69 was recently upheld by the High Court: SZTAL v Minister for Immigration [2017] HCA 34. 15 Accordingly, the appeal must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.