CJT15 v Minister for Immigration and Border Protection

2. THE DECISION OF THE TRIBUNAL 8 The appellant gave evidence before the Tribunal with the assistance of an interpreter, and was assisted by a registered migration agent, who presented written and oral arguments on his behalf. 9 The claims advanced by the appellant to the Department of Immigration and Border Protection were set out in [19] of the Tribunal's reasons as follows (emphasis added): a) He is a 43 year old Tamil Hindu from Kandy. He lived between Kandy and Kilinochchi until 1996, when he fled to Saudi Arabia for 12 years. He returned to Sri Lanka in 2008 and moved to Vavuniya and returned to Kilinochchi to be with his mother. b) All Tamil men are suspected of LTTE support, even though he has never been involved with the LTTE. He was harassed many times by the Sri Lankan Army (SLA), which is why he fled to Saudi Arabia. While there, his mother told him that the SLA came to his home several times inquiring about his whereabouts. They warned his family that they would harm his younger brothers; one moved to the UK for safety, while the other lives in fear in Sri Lanka. c) His time in Saudi Arabia would have increased the SLAs suspicions that he was involved with the LTTE. He was detained a number of times at SLA camps in Vavuniya, verbally abused, and asked why he had come from Kilinochchi. He continued to be stopped, verbally abused and threatened by the SLA and possibly the CID when he returned to Kilinochchi. d) At the end of 2011/beginning of 2012 he fled to India to escape harassment and also to take care of a sick cousin but was only able to stay there for six months. He fled to Australia soon after his return. He continued to be questioned by the SLA up until the time he fled to Australia. e) He fears harm the SLA and CID because he is a Tamil male, perceived to be involved with the LTTE, and as a failed asylum seeker to a western country. He also fears Sinhalese civilians who target Tamils due to their ethnicity and religion. This has happened to him. 10 At [21] of its reasons the Tribunal recorded receiving submissions from the appellant's representatives contending that he would face harm by reason of: (a) his Tamil ethnicity; (b) his imputed political opinion including that he will be accused of being a spy; and (c) his membership of the particular social group of "returnees from western countries". 11 After providing a detailed summary of the appellant's evidence and claims, the Tribunal made a number of relevant findings. 12 First, it did not accept that he was of any ongoing interest to the Sri Lankan authorities. Whilst it accepted that he may have been harassed by the authorities before he went to Saudi Arabia because of imputed support that he gave the LTTE as a Tamil man in the North of Sri Lanka, it did not accept on the evidence before it that he or his family were of any particular adverse interest to the authorities. 13 Secondly, it did not accept on the evidence that the appellant's time in Saudi Arabia, or his travels to India, increased the suspicions of the authorities that he was involved in the LTTE. It noted that he was able to enter and depart from Sri Lanka multiple times without problems while he was living in Sri Lanka and to obtain a new passport. The Tribunal did not accept that he could do so if he were the subject of suspicion. 14 Thirdly, the Tribunal considered, having regard to relevant country information, that Sri Lankan authorities no longer consider being a Tamil, a Tamil male or a Tamil male from formerly LTTE controlled areas gives rise to a risk profile in Sri Lanka. Nor, it found, does such a profile impute an individual with a pro-LTTE opinion. 15 Fourthly, the Tribunal rejected the appellant's claim that the fact that he came to Australia by boat will further increase the risk against him. In this regard it considered country information to which it was referred, and concluded that individuals who have a profile of interest to the Sri Lankan authorities and who are failed asylum seekers from a Western country may be of adverse interest upon their return. However, because the Tribunal concluded that the appellant does not have a profile of interest to the authorities, it concluded that he would not be subject to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures. 16 Accordingly, the Tribunal rejected the appellant's claims.

3. THE DECISION OF THE FCCA 17 The appellant represented himself before the FCCA and was assisted by an interpreter. At the hearing, he applied for an adjournment on the basis that he wished to receive legal advice. He also stated that he had only received the court book recently. This application was refused for the reasons discussed in section 4.1 below. 18 Before the FCCA, the appellant relied on the following grounds in support of his substantive application for judicial review:
   1. The decision of the Tribunal (a) is affected by an error of law; and (b) denied the Applicant procedural fairness.
   2. I have made an application for assistance through Victoria Legal Aid and am waiting for a decision. 19 The primary judge considered the decision of the Tribunal and concluded that none of the grounds relied upon were made out. As the grounds advanced on appeal were not raised before the primary judge, it is not necessary for me to consider the decision of the FCCA in further detail.

4.1 Leave to appeal the refusal of the adjournment 20 At the outset of the hearing below, the primary judge refused the application for an adjournment. The Court found, based on the evidence tendered on behalf of the Minister (who opposed the application for an adjournment), that the appellant had received a copy of the court book some 11 months before the hearing. The Court also referred to correspondence dated 19 November 2015 (some 17 months before the hearing), from the Minister to the appellant, supplying the appellant with a list of organisations through which he could receive legal assistance, including Victoria Legal Aid (VLA). The Court observed that this correspondence urged the appellant to move promptly to obtain assistance, if he desired to do so. Furthermore, the primary judge noted that the appellant had approximately 11 to 12 months notice of the date of the final FCCA hearing. 21 The appellant's application for leave to appeal from the decision refusing the adjournment is supported by an affidavit sworn by the appellant on 3 May 2017 in which he indicates that, in preparation for the FCCA hearing, he had asked VLA for legal assistance. They responded that they "would consider his application, but could not undertake to appear at the FCCA hearing on 4 April 2017. VLA indicated that if the appellant obtained an adjournment and provided them with the court book, they would "consider and assist him with his case". The appellant contends that he suffered substantial prejudice as a result of the refusal of the adjournment. 22 In my view the reasons for the learned primary judge reflect no error in refusing the adjournment. Plainly, the primary judge was entitled to have regard to the time that the appellant had taken to seek legal assistance. Her Honour found that the appellant had had at least 11 months to do so. The appellant offered no evidence to suggest that this period was inadequate or any evidence as to the precise steps that he had taken to secure VLA's assistance or when he sought their assistance. Further, (to the extent that it is relevant) the evidence adduced on appeal includes no evidence to suggest that the appellant had made any timely application for legal assistance. 23 In these circumstances, in my view the appellant has not established a sufficient basis upon which the discretionary decision of the primary judge to refuse to grant an adjournment should be set aside; House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-555. Accordingly, leave to appeal the refusal of an adjournment is refused.

4.2 Leave to rely on grounds not advanced before the primary judge 24 I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the Visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal's decision to refuse to grant the Visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal's decision to refuse to grant the appellant the Visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth). 25 The substantive grounds of review pursued before the FCCA are different to those raised in the present appeal. Accordingly, the appellant requires leave of the Court to pursue these grounds. 26 In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588, at [46] and [48], the Full Court said: …Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. ... The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 27 In the present case, the Minister does not contend that he is prejudiced by the advancement of the new grounds of appeal. However, he contends that the two grounds now pressed are of no merit and that leave should not be granted.

4.3 The grounds proposed to be advanced 28 The first ground proposed to be advanced by the appellant is that the Tribunal erred in failing to consider a claim made by the appellant to the effect that he may suffer persecution, serious harm or significant harm in detention, not targeted at him because of his specific profile but as a result of a general, random or ubiquitous violence by the authorities in Sri Lanka. 29 In his submissions the appellant contends that the Tribunal made a jurisdictional error in failing to consider an integer of a claim that was squarely raised by him, citing SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 (Perry J) at [13] - [18] and Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 398. 30 It will be recalled that the Tribunal rejected the appellant's claims that the appellant was of any ongoing interest to the Sri Lankan authorities and noted that the appellant claimed that neither he nor his family has ever been involved with the LTTE. Furthermore, the Tribunal accepted that the authorities may have visited his family home whilst he was in Saudi Arabia and enquired about his whereabouts, but found that this was nothing more than routine questioning of Tamils by the authorities at the time. The Tribunal accepted that the appellant was questioned a number of times after returning from Saudi Arabia, including about his travel, but noted the appellant's evidence that he was not threatened or abused on those occasions and that the appellant was subsequently able to obtain a passport and depart Sri Lanka on three trips to India without difficulty. 31 After considering the evidence, the Tribunal did not accept that the appellant would face a real chance of serious harm or a real risk of significant harm due to being a Tamil, a Tamil (man) from the north, his previous prolonged period of residence abroad or his travels, or any actual or imputed political opinion arising as a result of his profile. 32 Further, the Tribunal considered the country information relevant to the appellant's claim that as a failed asylum seeker / returnee from a Western country he would be of interest upon his return to Sri Lanka. It concluded from that country information that only individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers (from a Western country) may be of adverse interest to the authorities. It relied on its earlier findings to conclude that the appellant would not be the subject of any interest to the authorities upon his return. As a consequence, it found that the appellant will not be subjected to any detention or interrogation on arrival to Sri Lanka or at any other time after he is released other than standard questioning and procedures and that this does not amount to serious harm or significant harm as set out in s 36(2A) of the Act. 33 The Tribunal also considered and rejected the appellant's claim that because he had departed Sri Lanka without a valid travel document, he would be the subject of significant harm. 34 It is against the background of these matters that one turns to the allegation that the Tribunal failed to consider a more general claim by the appellant that he may suffer persecution or harm or significant harm in detention not being targeted at him because of his specific profile, but as a result of general, random or ubiquitous violence. 35 At the outset one might consider that there is an illogicality about this contention. Having rejected the claims that, as a person of a particular profile, the appellant might be exposed to harm, one might think that it is plain enough that the Tribunal did not consider that he would suffer such harm as a member of the general populous. 36 Nevertheless, there is a more compelling reason to reject this proposed ground of appeal as insufficiently arguable to warrant the grant of leave. This is because there is no persuasive evidence that the claim was ever advanced by the appellant. 37 In his submissions on behalf of the appellant, Mr Krohn refers to 17 bullet points in a 56 page submission prepared by the solicitors acting on the appellant's behalf before the Tribunal, where it is asserted that the material in the submissions "went beyond evidence of targeted harm" and included evidence of torture or serious harm as a part of the general culture within Sri Lanka. He submits that the material in the sources and material in these submissions explicitly raised this claim. 38 Regrettably, the creativity of this submission is not matched by material support for its content. The submissions commence by clearly identifying that the appellant fears persecution in Sri Lanka arising from his particular race, from an imputed political opinion and from his membership of a particular social group, namely a returnee from a Western country. Those claims reflect the claims made consistently by the appellant including those made to the delegate as summarised by the Tribunal at [19], as emphasised in the quotation of that paragraph in [9] above. The claim that is presently advanced, that the appellant fears harm as a result of general, random or ubiquitous violence, is not identified anywhere in that submission. In my view each of the points to which Mr Krohn refers must be understood in the context in which they appear, namely that they are references to support his claim of persecution on the basis of his particular profile. 39 Accordingly, I do not consider that the appellant has sufficiently demonstrated that he has an arguable claim to warrant the grant of leave to appeal on ground one. 40 The second proposed ground of appeal pleaded was not pressed at the hearing. 41 The third proposed ground advanced (in ground 3(a)) is that the Tribunal fell into jurisdictional error by making findings which are "illogical in the sense of being unsupported by any probative evidence", (citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2014) 240 CLR 611, at [16] - [40], [119], [120], [124] - [133]) on the basis that the Tribunal had no logically probative evidence that the appellant's parents and siblings would be able and willing to act as guarantors for the appellant's release on bail, once he has been held in detention following his return to Sri Lanka as a failed asylum seeker in a Western country. 42 The Tribunal relevantly found at [82] that according to country information (provided by the Department of Foreign Affairs and Trade (DFAT)) persons charged with illegal departure are held in police custody at the airport office for up to 24 hours during an investigation period. They are then produced before the Magistrate's Court and released on bail on the provision of a non-pecuniary guarantee. Persons needing to be held for more than 24 hours because they arrived on a weekend or public holiday are transferred to the nearby Negombo Prison Remand Unit until the Magistrates Court is in session. The Tribunal continued at [82], and later at [87] (emphasis added): …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. There is no payment required for bail. Sometimes returnees then need to wait until a family member comes to court to collect them… … The Tribunal places weight on the DFAT advice above and is satisfied that the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act before appearing before a court hearing regarding bail. The applicant's parents and siblings are present in Sri Lanka to guarantee his bail and the tribunal finds on the evidence before it that they will be able to do so. 43 The appellant contends that the Tribunal had no evidence before it that a member of the appellant's family would be willing and able to act as guarantor for his bail. If there was no family member willing and able to act as guarantor, then it would appear bail would be denied or delayed. That would mean a longer period in prison. Accordingly, the availability of a family member to act as a guarantor was a "crucial link" in the Tribunal's reasoning, citing Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (SZTQS) at [60]. 44 This ground has some merit, because the Tribunal's chain of reasoning is not fully exposed and I grant leave for it to be advanced on appeal. However, for the reasons set out below, I do not think that the ground is made out. 45 SZTQS was a case in which the Tribunal did not specifically put to the appellant an issue as to whether there was in fact a family member who would provide surety. It was also held by the Full Court (per Robertson, Kerr and Logan JJ) to be fact specific: SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 at [77]-[79]. In the present case, the question of whether the appellant's family would be willing and able to act as guarantor for his bail was squarely put to the appellant. 46 The transcript of the hearing before the Tribunal is not in evidence before this Court. However, the appellant accepted the summary of the relevant exchange between the appellant and the Tribunal provided by the Minister, namely that during the course of the hearing before the Tribunal, the Tribunal raised the question of bail and the appellant said that he was "not confident" of someone guaranteeing bail, and that there "are problems" with that course. 47 This is referred to in the Tribunal's reasons at [48]: The tribunal discussed the country information regarding illegal departure including the fact that he is likely to be charged with an offence under Sri Lanka's immigration laws, which would be considered a law of general application and that in his circumstances he was likely to be remanded and released on personal bail after a few days' maximum. The applicant said that it is not guaranteed that his family will bail him out or that he will be released. 48 In its reasons at [25], the Tribunal found that the appellant's mother, younger brother and two sisters are living in Sri Lanka. It later said at: [49] The tribunal advised that the punishment if convicted was likely to be a fine, referred to the range of fines previously imposed and asked if the applicant would be able to pay that. He advised that it is not the money. He has no inclination to return. He confirmed that his sisters' husbands are working. He was working in Australia before but is not now. The tribunal put to him that it may find that he can pay. The applicant advised that money is not an issue. He just wants to stay. [50] The tribunal advised that it may find that he would only spend a short period in prison. It referred to information on poor prison conditions in Sri Lanka and noted that on the country information discussed it may find that the chance he would face serious harm as a result of his profile is remote… 49 The evidence given by the appellant at the Tribunal hearing and summarised in [48] of the Tribunal's decision reflects the fact that the question of bail was squarely raised. Whilst the appellant said that he was not confident of someone guaranteeing bail and that there "are problems", this was evidence that the Tribunal was open to accept or reject. It may be inferred that in reaching its conclusion in [87] (that the appellant's family are present in Sri Lanka to guarantee his bail and that, on the evidence, they will be able to do so) that the Tribunal rejected the appellant's evidence that there were "problems" with such a guarantee and found that the family would act as guarantor. 50 In my view the finding at [87] does not reflect jurisdictional error by making findings which are "illogical in the sense of being unsupported by any probative evidence". "Illogicality" or "irrationality" in administrative reasoning sufficient to give rise to jurisdictional error means that the decision is one at which no rational or logical decision maker could have arrived on the same evidence: SZMDS 240 CLR 611 at [130]. As Crennan and Bell JJ further observed in SZMDS 240 CLR 611: … But, 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. It is also settled that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (at [63] per Hayne, Kiefel and Bell JJ, at [26]-[28] per French CJ and at [88]-[92] per Gageler J). As French CJ observed in that case (at [30]) a distinction may arguably be drawn between rationality and reasonableness, as not every rational decision is reasonable. In broad summary, legal unreasonableness may include a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process, or a conclusion that the decision is arbitrary, capricious or without "common sense" or lacks an evident and intelligible justification: Li 249 CLR 332at [28], [76], [105]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]. 51 It was open to the Tribunal to reject the appellant's obfuscation (summarised at [46] above) that bail may not be granted, especially in circumstances where the Tribunal found that: (1) 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, which only sometimes required the returnee to wait until a family member collected them (see [82]); (2) No payment was required for bail (see [82]); (3) The appellant's circumstances did not indicate that he would not be released on bail if a family member acted as a guarantor (see [83]-[87]); (4) The appellant has family members who reside in Sri Lanka (see [87]); and (5) There was no evidence before the Tribunal or this Court which explained why his family members may be unable to act as a guarantor. 52 Further, the contention that there was no evidence or no probative evidence is untenable as there was evidence of relevance to the issue before the Tribunal. As the learned authors Aronson and Groves put it in Judicial Review of Administrative Action, the no evidence ground "cuts out when even a skerrick of evidence appears": Aronson M and Groves M Judicial Review of Administrative Action (5th ed, Thomson Reuters, 2013) at 246, [4.600]; see also Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 587 (Weinberg J). 53 In ground 3(b) the appellant further contends for a similar error on the part of the Tribunal in concluding that there was no real chance of the appellant suffering serious or significant harm given the submissions before it concerning general or ubiquitous violence by the authorities. However, the appellant accepts that the fate of this ground of review would follow that of ground 1, and it is not necessary to consider it further.

5. Disposition 54 I do not grant leave to the appellant to appeal from the decision refusing an adjournment of the hearing. Nor do I grant leave to rely on ground one of the draft notice of appeal. I do grant leave to rely on ground 3, but having considered the merits of that ground, the appeal is dismissed. The appellant must pay the Minister's costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.