FEDERAL COURT OF AUSTRALIA

AXQ15 v Minister for Immigration and Border Protection [2016] FCAFC 73

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to file an amended notice of appeal in terms of the draft provided to the Court on 18 May 2016, confined to the first proposed ground of appeal.

2.    Leave to file an amended notice of appeal containing the proposed second ground of appeal be refused.

3.    The amended notice of appeal in accordance with order 1 be filed within 7 days of delivery of the reasons for these orders.

4.    The appeal be dismissed.

5.    The appellant pay the first respondent’s costs of the appeal as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 1 December 2015, dismissing an application for judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 29 April 2015. The Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa.

2    The appellant is a 30 year old Tamil citizen of Sri Lanka who arrived in Australia by boat at Christmas Island on 24 June 2012. He applied for a protection visa on 21 November 2012.

3    On 30 January 2014, a delegate of the first respondent, the Minister for Immigration and Border Protection, refused the grant of a protection visa. As noted above, the Tribunal affirmed the delegate’s decision. On 1 December 2015, the Federal Circuit Court dismissed the appellant’s judicial review application. On 17 December 2015, the appellant filed a notice of appeal in which the sole ground of appeal was expressed as follows:

That the Federal Circuit Court Judge erred in dismissing the proceedings and that to do so was procedurally unfair.

4    On 18 May 2016, the appellant’s solicitor sought to file an amended notice of appeal in this Court. Leave was not granted at that time, the matter already having been listed for hearing before a Full Court on 23 May 2016, and submissions having already been received on behalf of both the appellant and the Minister addressing the two areas covered by the proposed amended notice of appeal.

5    When the matter was called for hearing on 23 May 2016, the Court determined that the question of leave to file the amended notice of appeal would be deferred until after it had heard argument. The proposed two grounds of appeal were expressed as follows:

Ground 1

The Court below committed error in failing to find that the AAT decision is affected by error because the reasoning at [AB 301, 70] is so illogical and/or so inconsistent with the findings at [63] that it should be set aside.

Ground 2

The proceedings in the FCC was infected with Jurisdictional error as a fair minded and reasonably well informed observer is likely to conclude that there was a real possibility that His Honour was not impartial. (Original emphasis)

Particulars

(a)    His Honour unduly interfered and interrupted during proceedings, and was seen assisting in the development of arguments of one party, that party being the Respondents counsel (Refer Transcript of FCC proceedings).

(b)    His Honour actively participated during proceedings and appeared to advocate in favour of the Respondents counsel (Refer Transcript of FCC proceedings).

(c)    There was much interaction between His Honour and the Respondent’s counsel (Refer Transcript of FCC proceedings).

(d)    During the proceedings there were numerous instances when His Honour was pursuing a certain line of questioning, despite the Respondent’s counsel not showing interest or pursuing a certain legal point. A fair minded and reasonably well informed observer is likely to conclude on the basis of the line of questioning pursued, that His Honour not only fell short of being impartial, but most importantly pursued a certain line of questioning with the intention of arriving at a finding that would be unfavourable to the Appellant (Refer Transcript of FCC proceedings).

6    For the reasons that follow, the appellant is granted leave to file the amended notice of appeal in respect of the first proposed ground, but not in respect of the second proposed ground, and the appeal is dismissed with costs.

Before the Tribunal

7    The Tribunal accepted that the appellant:

(a)    was a Tamil citizen of Sri Lanka, and had left his country unlawfully by boat;

(b)    in 2004 had been rounded up, detained, questioned and threatened in the city of Jaffna in the Northern Province of Sri Lanka, during the civil conflict between the government of Sri Lanka and the Tamil separatist movement, the Liberation Tigers of Tamil Eelam (the LTTE);

(c)    as a consequence had gone to live and work with his uncle in the city of Batticaloa in the Eastern Province;

(d)    in late 2008, when living in the capital of Colombo in the Western Province for three months, had been detained by the army and released;

(e)    in early 2010, when in Jaffna again for five months, had been forced to undertake unpaid work for the army, and had been afraid to disobey requests to do this, and when he had been unable to do this work due to the illness of his mother, had been humiliated and forced to strip to his underwear and kneel in the sun;

(f)    as a consequence had returned to Batticaloa and remained there from May 2010 to December 2011;

(g)    in December 2011 returned to Jaffna due to his mother’s illness, and from then until his departure to Australia in June 2012 had again been forced by the army to do unpaid work, and was occasionally threatened and intimidated;

(h)    had enquiries made about him by the army in Jaffna after he had left for Australia; and

(i)    had never been a supporter of the LTTE.

8    The Tribunal analysed the appellant’s evidence of past harm in Batticaloa, and found his claims of extortion there by a criminal group were exaggerated, having only paid the equivalent of $130 over six years despite demands for more money. The Tribunal accepted his claims, supported by police reports, that his uncle’s shop had been robbed, but did not accept his further claims going beyond the police reports that the shop had also been set alight.

9    The Tribunal concluded that as the appellant’s Tamil uncle had run the shop in Batticaloa for 30 years without serious or significant harm, the appellant had been there for eight years without serious or significant harm, and the appellant was at lesser risk of harm than his uncle, then he was not at future risk of serious or significant harm. This reasoning established the basis for Batticaloa being a relocation option, with the Tribunal finding that the appellant’s home area was Jaffna, although there were strong arguments that he in fact had two home areas, Jaffna and Batticaloa.

10    The Tribunal considered each of the possible Refugees Convention claims by category, considering the country information and applying it to each claim to form a view. The only claim that was further pursued on judicial review was that relating to the appellant’s Tamil ethnicity. The additional claims based on political opinion and the particular social groups of Tamil businessmen and their families and failed asylum seekers do not need to be considered further. Nor does the complementary protection claim as a failed asylum seeker and person who left Sri Lanka illegally require further consideration.

11    The Tribunal considered country information for Tamils in Sri Lanka which indicated that since the civil war ended in 2009, and in particular since 2010, the fact of being from the north of Sri Lanka, even if a Tamil and even if having had past contact with the LTTE, was no longer a basis for a group-based presumption of needing protection.

12    The Tribunal noted that a claim is not necessarily confined to the higher profile groups, with ethnicity and geographical origin still having some significance to risk. An elevated general risk profile did attach to various groupings, but the appellant was not a member of any of them. Even the establishment of a link to the LTTE was not determinative of an asylum claim, and the appellant had no such link.

13    More generally, the Tribunal noted country information that indicated that the Sri Lankan government’s focus was on preventing a resurgence of the LTTE (or any similar separatist organisation) or the revival of civil war. This country information indicated that the risk categories for persecution or serious harm include those who are, or who are perceived to be, a threat to the integrity of Sri Lanka. It also indicated that the approach of the Sri Lankan authorities was based on sophisticated intelligence, with there being an awareness of economic migrants and that everyone in the north had a degree of involvement with the LTTE. The information noted by the Tribunal also indicated that in post-conflict Sri Lanka, such past history will be relevant only if it indicates a present risk to the unitary state or government.

14    The Tribunal drew from the country information that, while human rights abuses are still a problem and Tamil citizens are disproportionately affected, the key catalyst to human rights abuses is most often certain perceived or actual links to the LTTE. Simply having had LTTE connections or sympathies is not seen as a destabilising threat. The risk is mostly limited to those with an actual or perceived significant role in post-conflict separatism.

15    The Tribunal considered the appellant’s circumstances. While it accepted he was rounded up and questioned in Jaffna in 2004, and detained in Colombo in 2009, this was not indicative of what would happen now. The appellant had never been an LTTE supporter and there was no evidence he would be perceived as such. Accordingly there was no real chance of harm on this basis.

16    The Tribunal found the army’s forced labour and making the appellant strip and kneel in the sun in Jaffna in 2010 was serious harm under s 91R(1)(b) and (2)(a) of the Migration Act 1958 (Cth). The essential and significant reason for this was his Tamil ethnicity so as to fall within s 91R(1)(a). It was found to be systematic and discriminatory conduct so as to fall within the terms of s 91R(1)(c). Because the terms of the paragraph containing these conclusions formed an essential part of the appellant’s argument it is convenient to reproduce that text in full:

[63]    In terms of the applicant being forced to work for the army in Jaffna, the Tribunal has been satisfied with the truth of the applicant’s evidence in this respect. The Tribunal is satisfied that the applicant has been a target by the army in Jaffna and subject to forced labour on multiple occasions. It accepts that he and his family have been intimidated by the army on occasions when the applicant has not been able to work for them. The Tribunal accepts that on one occasion, during the first period of adverse treatment by the army in Jaffna, the applicant was made to strip and kneel in the sun. The Tribunal is of the view that the extent of the forced labour, and given the power of the army to ensure compliance, that the applicant has suffered a threat to his liberty that would constitute serious harm for the purposes of s. 91R(1)(b) and 91R(2)(a).

17    The Tribunal considered the principles applicable to relocation, including authority of this Court and of the High Court. It found that the risk of serious harm was localised to Jaffna. No issue was taken in this Court as to any aspect of that analysis.

18    The Tribunal found that the targeting of the appellant by the army in Jaffna was opportunistic and localised. The Tribunal found that he was targeted because he was a Tamil and provided a ready source of free labour and for no other reason. This targeting began before he went to Batticaloa in 2010.

19    The Tribunal found there was no evidence that the appellant’s difficulties in Jaffna followed him to Batticaloa, such as the army informing local authorities that he was of adverse interest. The Tribunal noted the appellant’s evidence that when the police visited his uncle’s shop on his return to Batticaloa, he was not even required to register because his uncle vouched for him. The Tribunal held that there was no targeting of him by an agency of the state that would follow him to Batticaloa.

20    The Tribunal did not accept that the appellant’s second period in Jaffna in 2011-12 meant that the past was not a guide to the future. It found that if there was broader targeting of the appellant beyond opportunistic mistreatment of him, it would have happened in 2010.

21    The Tribunal then turned to specific country information concerning relocation. Because this and the immediate following paragraph were those upon which the appellant’s claim was based, it is convenient to reproduce them:

[70]    The Tribunal notes that DFAT Country Report – Sri Lanka comments that is unlikely [sic] that individuals can relocate internally within Sri Lanka with any degree of anonymity.19 The UNHCR Eligibility Guidelines for Sri Lanka state that internal flight or relocation is not available whether feared persecution emanates from the state itself or elements associated with it. However, DFAT assesses that individuals do generally have the ability to relocate internally to minimise monitoring or harassment by local level officials for petty issues.20

[71]    The Tribunal considers that the evidence in this case establishes that the harm suffered by the applicant in Jaffna is opportunistic and localised. Past experience suggests that no adverse interest by the army in Jaffna has followed the applicant to Batticaloa. Whilst the Tribunal accepts that the issues faced by the applicant in Jaffna are not petty from his perspective, he has not been targeted as a person of adverse interest to the state, and the Tribunal considers that the treatment of the applicant by the army is conduct of a nature referred to in the qualification of in the DFAT assessment. [sic]

22    Because there was a potential issue as to the contents of the report from the Department of Foreign Affairs and Trade (DFAT) referred to in the Tribunal’s reasons at [70] reproduced above, counsel for the Minister tendered two pages of the DFAT report containing the paragraphs referred to in the Tribunal’s footnotes numbered 19 and 20. In response to a concern by the appellant’s solicitor about those paragraphs being taken out of context, the Minister also tendered a copy of the entire report. Those two documents were admitted as Exhibits A and B respectively. There is no material difference between the Tribunal’s summary and the full text of the paragraphs of the DFAT report ([5.20] and [5.21]), and nothing in the full report that causes us to address this further.

23    The Tribunal found that relocation to Batticaloa was reasonable given that for an extensive period of time in the past the appellant was living there, to the point of that city being a virtual second home. The Tribunal considered arguments to the contrary, but did not accept them. It concluded that there was no real chance of serious harm from requests for money in Batticaloa. Relocation there was reasonable in light of the appellant’s history, with there being no real chance of harm beyond general discrimination.

24    The delegate’s decision was therefore affirmed.

Ground 1

25    The appellant argued that the Tribunal’s decision was affected by error because [70] of its reasons was so illogical or inconsistent with the prior findings at [63] that the primary judge should have set it aside, implicitly due to jurisdictional error. The appellant argued that illogicality or inconsistency arose because monitoring or harassment could not conceivably amount to persecution and the persecution referred to at [63] was by the army, not local officials.

26    It was also argued orally on behalf of the appellant that there was a “general rule” arising from the country information whereby relocation was only possible to minimise monitoring or harassment by local officials over petty issues. We do not think that this characterisation was necessary or appropriate. There was a body of country information and other information, including about the appellant’s particular circumstances. The Tribunal was required to make an assessment relating that general information to the appellant’s particular circumstances. In this case, that process resulted in a finding that the past mistreatment was localised and opportunistic, and did not pose a threat to him outside of Jaffna.

27    The interpretation urged upon the Court by the appellant requires the passages of the Tribunal’s reasons at [70] and [71] to be read out of context. The Tribunal at [70] was not reaching its own conclusions about the appellant’s case, but rather endeavouring to summarise the effect of the country information before it as to the availability of relocation within Sri Lanka. On that basis alone it is not possible to say that there is any inconsistency between [63] and [70], let alone any basis for a finding of illogicality.

28    The Tribunal at [71] was concluding that, while what had happened to him in Jaffna in 2010 and 2011-12 was not petty from his perspective, it was not the sort of interest or basis for mistreatment that would follow him now any more than it had in 2010. Put another way, the Tribunal was saying that there was the same level of relocation availability for what had happened to the appellant in Jaffna in 2010 and 2011-12 as there would be for someone else facing monitoring or harassment for petty issues.

29    While the phrasing and expression by the Tribunal might have been clearer, especially in the last sentence of [71], in the proper context of detailed and thorough reasons, and on a fair reading of them as a whole, there was no inconsistency or irrationality, let alone to the level amounting to jurisdictional error. The primary judge did not err in failing to find any such error. Ground 1 must therefore fail.

Ground 2

30    The appellant seeks to argue that the decision of the primary judge was infected with a denial of procedural fairness arising out of apprehended bias. This was said to arise out of the totality of the transcript of the hearing in the Federal Circuit Court, and not turn on any individual passage, although the Court was referred to specific parts of the transcript as illustrative of the overall approach of the primary judge.

31    It is worth repeating the observation recently made on this topic in the Full Court decision of ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36]:

35.    Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)).

36.    Other relevant principles are:

(a)     at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i)    there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii)    there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

(b)    an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and

(c)    as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).

32    There is no doubt that the primary judge was probing both parties to address the matters of concern to his Honour, and in so doing revealing the way in which key issues and arguments were being received and interpreted by him. Speaking generally, a judge may properly conduct a hearing in this way, having regard to contemporary case management principles. In this context, exchanges between the bench and one party at the bar table may at times appear somewhat one-sided to an opposing party; and upon reflecting on an adverse ex tempore judgment as in this case, the losing party may be tempted to attribute the loss to the primary judge having a closed mind. This is, however, simply not enough. As was noted in Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 493 [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ:

… At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. … Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

33    The transcript of the hearing before the primary judge does not reveal a situation rising beyond the above description.

34    As the case for apprehended bias has not been shown to have any substance, leave to amend the notice of appeal to raise this ground is refused.

Conclusion

35    We can discern no reason why costs should not follow the event. We would dismiss the appeal with costs.

Associate:

Dated:    3 June 2016