FEDERAL COURT OF AUSTRALIA

AGI15 v Minister for Immigration and Border Protection [2018] FCA 232

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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

PERRAM J:

1    This is an appeal form the Federal Circuit Court: AGI15 v Minister for Immigration [2017] FCCA 1862. It refused the Appellant’s application for orders to quash a decision of the former Refugee Review Tribunal that he was not entitled to the issue of a protection (class XA) visa.

2    Due to the thoroughness of the reasons given by the Federal Circuit Court the issue before this Court is confined. The Appellant is a national of Sri Lanka and is of Tamil ethnicity. He is around 28 years old. The general thrust of his claims for protection centred on his Tamil ethnicity and the difficulties faced by Tamils in Sri Lanka in the period following the civil war. However, the Appellant’s case also featured a different claim relating to a skin condition from which he suffered.

3    The Appellant explained the nature of his skin condition and its role in his concerns in the statutory declaration that accompanied his protection visa application:

‘When I was 10 years old, the Sri Lankan Army (“SLA”) came to round up the Tamil villagers. At the time, we were living in an area that was controlled by the SLA. This made movement in our area very difficult as we were under constant watch by the SLA. On this day, the SLA had come because there was a bomb blast in the area. Everytime such an incident took place, the SLA would come to our area and harass and hit the Tamil people. I had a pet dog who on the day started barking and went to bite the SLA. The SLA went to shoot him and I ran after my dog to pick him up. My dog was very angry and bit my face and I still have a scar from this.

I was taken to the doctor who then gave me some medication. Eventually, over time, I developed the skin condition and my skin became worse. My skin now is such that I can’t be in the heat for a long period of time without being severely burnt.

As the intensity of the war increased, the round ups also became very frequent. The SLA would always take the young Tamil males with them on suspicion that they were involved with the LTTE. They would hit us and interrogate us and ask us as to whether we are LTTE members or supporters. I have probably been taken about five times and stopped on other instances on the street. Amongst the other Tamils, I was always of particular suspicion to the SLA due to my appearance. They believed that because I had this skin condition, I must have been burnt as a result of fighting in the war.’

4    The Appellant’s point as illustrated in the last sentence was that his appearance caused the Sri Lankan Army (‘SLA’) to believe that he had been burnt as a result of fighting in the civil war.

5    It is not in dispute that the Tribunal was aware that the Appellant had a skin condition or that the claim he made about it was that it had a tendency to make the SLA think that he had been involved in fighting during the war. It said this at [34]:

‘34.    The Tribunal has considered the applicant’s claim that he will be targeted for harm and harassed on return to Sri Lanka because of his appearance. The Tribunal accepts that the applicant has a distinctive appearance caused by his skin condition. However the Tribunal does not accept that the applicant was specifically targeted, or viewed with greater suspicion, because of his appearance, during these roundups.’

6    In the Federal Circuit Court and in this Court, the Appellant’s submission directed attention to the precise nature of his skin condition. It was said he had a melanin condition which would have the effect of slowly turning his skin white (depigmentation). The submission was that whilst the Tribunal had turned its mind to his skin condition it had failed to consider the fact that the condition was progressive in the sense that he would only become whiter as time passed. This was said to be important because the Tribunal had only considered the consequences of the Appellant’s present appearance. Since an important plank in his case had been the progressive effect of the depigmentation, it was submitted the Tribunal had failed to consider one of the integers of his claim.

7    There is no dispute that if the Tribunal failed to consider the case advanced to it or a case which arose clearly from the material before it then it would make a jurisdictional error: NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 (‘NABE’) at 19-20 [60]-[61].

8    The short question is whether the Appellant advanced such a case to the Tribunal or whether, even if he did not, it was sufficiently clear from the materials before it that such a case arose and had to be considered.

9    As I have noted above, the Appellant did not advance the progressive depigmentation case in the statutory declaration which accompanied his original application for the visa. His case at the time he lodged his visa application was that he appeared burnt because of his skin condition and was suspected by the SLA for that reason. It is possible that one might take the view that this statement might even be inconsistent with the depigmentation case because burns do not necessarily appear white or even increasingly white. However, that is not a matter which I think can be inferred without evidence to that effect. Nevertheless, even if the depigmentation case is not inconsistent with the Appellant’s claims in his statutory declaration it remains the case that it was not mentioned in the original application.

10    There is no doubt, on the other hand, that the Appellant did mention depigmentation when interviewed by the delegate. The delegate’s reasons for decision include this statement:

‘Applicant’s skin condition

The applicant claims that at around age 10 he was bitten by his dog when attempting to retrieve him. The applicant was given a powder to mix with water from a hospital in Colombo which, when he initially applied it, burnt his skin resulting in large white marks. For some time his skin looked like it have been burnt then after a while this improved. The applicant was advised by his local hospital in Batticaloa that he had a melanin condition which would slowly turn his skin white. Since then the dark pigmentation has been fading from his skin.

I asked the applicant whether he has been to a doctor in Australia and he states that he has and that he will be getting some medication next week. The applicant was advised that his skin will not return to its original colour – it will only get fairer. At interview the applicant had a visible skin condition. When I compared the applicant to his original photo when he first arrived in Australia, I note the dark pigmentation around his face has reduced considerably which is consistent with the information provided by the applicant. Therefore, based on the applicant’s claims I am satisfied the applicant has a skin condition as claimed.’

11    It is clear that the delegate did not deal with a specific case relating to the Appellant’s depigmentation. On the other hand, it is equally clear that it did deal extensively with a case that the he feared persecution because he was a young Tamil with a skin condition. It examined several incidents in which the Appellant claimed to have been harmed on account of his skin condition. The delegate’s ultimate conclusion was that:

‘The applicant was able to recount a number of instances where he has been of interest to authorities; however I am satisfied this was not due to the applicant’s skin condition as other boys were also detained. I also note this was during the civil war when the Sri Lankan government was monitoring the LTTE. When considering the event from 2011 I note the applicant was pulled over by the Traffic police and while this may have happened due to the applicant’s appearance, I do not consider that being questioned rises to a level of serious harm. When considering the applicant and his friends leaving the temple in May 2012 I am satisfied they were victims of circumstance and happened to be leaving the temple at an unfortunate time.

Whilst I acknowledge the applicant’s appearance may have attracted interest from the authorities and caused his detention for two hours in April 2012, I am not satisfied the applicant is considered to have a profile as a LTTE supporter. Even when combining his skin condition with his Tamil ethnicity, whilst I acknowledge it would increase interest and scrutiny I do not accept he would be considered an LTTE supporter, otherwise I find it highly unlikely he would have been released after two hours with the presentation of a letter by his parents.

Based on the applicant’s account, that he has never sought assistance or protection from the authorities, that he has not made any effort to keep on his person documentation explaining his skin condition, and that the STF let him go after a letter provided by his family, I am not satisfied that the applicant’s appearance would give him a profile to be imputed with a political opinion as a person suspected of supporting the LTTE due to his skin condition.

Considering the circumstances of the client, there is no evidence before me to suggest that the claimed PSG ‘young Tamil male with a skin condition’ encompasses any other common characteristic which would result in persecution of the applicant. For this reason, I find that the applicant would not face a real chance of persecution due to his membership of the PSG ‘young Tamil male with a skin condition’ or that he would be imputed with a political opinion as a person suspected of supporting the LTTE due to his skin condition should he return to Sri Lanka.’

12    I do not think that it is possible to say that the Applicant expressly advanced to the delegate a case based on the increased risk he faced in the future as his depigmentation progressed. But NABE allows that such a case should be examined, even if not expressly advanced, if it clearly arises on the material before the decision-maker.

13    I do not think that such a case did arise. To begin with, it is far from obvious how the case works or if it even makes sense. The primary thrust of the skin condition case expressly advanced by the Appellant was that his skin condition made him look burnt and this increased the risk that the SLA would think he had been involved in the civil war. A burnt face suggested war injury; he was Tamil; a Tamil with a war injury might well have belonged to the Liberation Tigers of Tamil Eelam (‘LTTE’). That case was straightforward.

14    But progressive depigmentation does not advance that case. The logic underlying it seems to be that increased depigmentation implies more extensive burning and that, in turn, implies a higher likelihood of involvement in the LTTE. But this last step makes little sense. Whilst one might accept that there could be a significant correlation between the prevalence of war wounds on Tamils and their involvement in the LTTE, the same is not true of the extent of those wounds. Increased LTTE participation does not rationally imply an increased degree of individual scarring.

15    Once one gets to that point, the case does not make much sense. It is largely for that reason that it was not a case which clearly arose from the materials which is the issue raised by NABE. Thus, not only was a case based on the Appellant’s depigmentation not advanced to the delegate, I do not think it can be said to have been a case which was clearly open on the materials.

16    Once the Appellant’s representatives had filed his review application with the Tribunal they also lodged two written submissions. The first of these was provided on 28 March 2014 and the second on 16 February 2015.

17    The first submission did advance a case based on his skin condition but it is clear this was premised on the idea that he appeared burned. There was no discussion of depigmentation. The relevant parts of the submission are as follows (errors in original):

‘In 2000 the Sri Lankan Army came to round up Tamil villagers. The Applicant instructs that there [sic] were living in a SLA controlled area at that time. He instructs that they were constantly watched by the SLA. At that time, the SLA had come because there had been a bomb blast in the area. He also suffered a facial injury from a bite from his dog who the SLA were going to kill and continues to have a scar and skin issues stemming from the incident.

As the war increase the rounds ups from his village became very frequent. Due to the fact that he was a young Tamil, he was always suspected of being involved with the LTTE. During these times he was beaten and interrogated as to whether he was affiliated with the LTTE. The Applicant notes that he was taken about five times and stopped on other instances. Due to his facial injuries and appearance, the SLA believed that he may have been burnt during fighting.

In 2012 the Applicant was taken again by the SLA to their camp. He was again questioned and asked about how he got the facial injuring. He was kept for about two hours and severely beaten. Due to his appearance and continual detention, he was afraid that if he remained in Sri Lanka, he would be harmed by the SLA. As such, he had no option but to flee.

Sources within the body of the submission indicate that since the end of the war, the government continues to ‘Sinhalise’ the country.

The Applicant instructs that as a young Tamil male from the East, who has successfully escaped from Sri Lanka, he believes that he will be imputed with pro-LTTE sentiments. We note that Sri Lanka is a country where the LTTE and Tamils are regarded as synonymous with one another. He also has a skin condition which will further add to their suspicion about him being an LTTE fighter.

…

The Applicant’s appearance also causes suspicion and he has been interrogated as to whether his facial ailment stems from fighting for the LTTE.

…

The Applicant is also easily identifiable as a young Tamil male from the Easter province based on his National ID card. He also has a pronounced skin condition as accepted by the Delegate which we submit makes him easily identifiable and is likely to cause adverse inference about his involvement with the LTTE.

…

The Delegate concluded that although the Applicant had been stopped numerous times due to his appearance, this did not give him a profile of an LTTE supporter and further, found that the Applicant would not be a person of interest.

We submit that given the Applicant has been outside of Sri Lanka for some time, his previous detentions at the hands of the authorities and his clear facial scarring, his age, ethnicity and place of origin the Applicant does have a profile that makes him at risk of being persecuted.’

18    The second submission was concerned solely with general information about Tamils in general and did not touch upon the Appellant’s appearance.

19    The Appellant was interviewed by the Tribunal on 11 February 2016. The topic of his skin condition was addressed on more than one occasion. The relevant portions of the transcript of the hearing are as follows (errors in original):

‘M:    Now can you tell me why you can’t go back to Sri Lanka?

A:    There are problems hence I can’t return back, I can’t return.

M:    What are those problems?

A:    Because of the skin disease I faced problems. When I was living there I faced problems.

M:    Any other reason?

A:    This is the main reason.

M:    But can you tell me, I understand we can talk about it in a moment. Are there any other reasons that you can identify?

A:    This is the main reason while I was there I had a problems because of the army.

M:    How long have you had this skin condiation?

A:    It started 10 years ago?

M:    2003? 2004?

A:    Yes. Back then.

M:    Around, when you were 10 years old.

A:    Yes.

M:    Ok. Now how has that, your skin disease effected you and why has it caused you problems?

A:    I was bitten by a dog and then the problem started. The medication to apply on the skin it was either stronger or it was given the cream, the skin problem started, the skin problem started.

M:    There has been quite a lot of discussion how your skin condition came through in the delegate’s decision. My question is how has it effected you?

A:    There was skin all over the body, was sort of patches of black colour and white colour then from time to time when I’m going for tuition etc, they asked me to check my ID card, then asked me whether it happened because of a bomb blast.

…

A:    I can’t return to that country.

M:    It’s now 2015, it is almost 6 years after the war finished. Much has changed in Sri Lanka at that time. It is not perfect there are still problems. We are not seeing the army going around looking for LTTE. Why do you fear harm now? I mean it’s 2015.

A:    Till I come over here I was harassed.

M:    Till you came over here, you left in June 2012.

A:    Yes.

M:    It’s now February 2015. So why would you be harassed now?

A:    On suspicion, they detain the Tamil ethnic people, even now they detain people.

M:    But we are not seeing them detain Tamil people generally. I mean things have changed in Sir Lanka. Have you ever been involved with the LTTE?

A:    No.

M:    Have you ever supported the LTTE?

A:    No.

M:    Has anyone in your family been involved or supported the LTTE?

A:     No.

…

M:    …In the short period that you are detained before going to court for the purposes of being bail, do you believe that you will be harmed in jail?

A:    Yes.

M:    Why

A:    Is it because of the skin problem and that I left illegal.

M:    People who man the jail, why do you think because of your skin problem you will be harmed?

A:    Earlier during the round up etc. I was detained and questioned, the same thing would happen.

M:    Are you receiving treatment for you condition now?

A:    Earlier I was receiving treatment after I starting working they said it can’t be given.

M:    In Australia?

A:    I went to Clayton Hospital.

…’

20    Finally toward the end of the hearing in the Tribunal his representative made this submission:

‘Yes Member I would like to make a quick submission. During the break I had a chat to the applicant and there is some points that I want to talk about. With regards to the roundups and the random questioning of Tamils in the area, the applicant has instructed me that he was an easier target because of his physical appearance and that is what he meant by saying his physical appearance is an issue for him if he goes back. And even though some country information and such as, the number of rounds ups has decreased in Tamil areas with the army, but still there are some other country information showing that people will suspicion of being linked to the LTTE will be taken by the army and in the applicant’s case, his instructions are because of his physical appearance they assume what happened to him is because of either a bomb blast, or he was involved in any sort of arms that caused his, and that would continue with him if was to go back to Sri Lanka. And just the last point as you’ve mentioned that if he’s to go back to Sri Lanka he will be subjected to a process of interrogation cause of how he left the country and also of the fact that he is seeking asylum outside Sri Lanka and that his fear is that going through this process first as a Tamil and second given his appearance and what has happed to him in the past, he has a higher risk of being persecuted by the authorities.’

21    It seems reasonably clear that no case was advanced about a future risk arising from the progressive nature of the depigmentation. And for the same reasons I have given in relation to the delegate’s decision, I do not think that such a case clearly arose on the material before the Tribunal.

22    It follows that the Tribunal was not obliged to deal with such a case under NABE. The Tribunal dealt with the case which the Appellant had actually advanced this way at [38]:

’38.    The Tribunal does not accept that the applicant will be targeted by the authorities because of his appearance. Though the applicant’s appearance is distinctive, the Tribunal considers that the authorities do not have an interest in the applicant, having demonstrated historically that their interest in the applicant was limited to general roundups that ended in a prompt release. The applicant does not have any of the attributes detailed below at paragraphs 42 and 43 which have been identified as needing careful examination, the Tribunal does not accept that the authorities suspect the applicant of any involvement in the civil war or LTTE in general. The Tribunal finds that the authorities will not target the applicant in the present day for any attribute that has.’

23    It did not deal with the depigmentation case but, as I have explained, it was not obliged to do so.

24    This is the same conclusion that the Federal Circuit Court reached. The Appellant’s ground of appeal was that the Federal Circuit Court had erred in concluding that the Tribunal had considered the integers of his claim. There were three steps to the argument. First, the Appellant had identified his claim as that of a Tamil with a skin condition who had fled Sri Lanka. I accept this. Secondly, the Court had concluded that it was for the Tribunal to identify the claims before it. Thirdly, the Court erred by attempting to distinguish the various skin conditions suffered by the Appellant.

25    I do not think the Court below erred in those respects. For the reasons given the progressive depigmentation case was not advanced to the Tribunal and did not clearly arise. The Court was correct to seek to identify the nature of the Appellant’s case before the Tribunal and it was correct in its conclusions on that issue. Whether the issue was for the Tribunal to decide or for the Federal Circuit Court does not much matter since they both decided it the same way and correctly.

26    At the hearing of the appeal, the Appellant was unrepresented. He raised two points in his submission which are not covered by the foregoing. The first was that since he had been exposed to sunlight in Australia his skin had begun to darken. He could not obtain treatment as he did not have a Medicare card. But whether his skin lightens or darkens I cannot see how a case based on disfigurement is advanced by knowing that the disfigurement varies over time. I have already explained my reasons for this. Secondly, the Appellant submitted that his appearance would cause him to be an outcast in Tamil society. I can certainly understand the Appellant’s concerns in that regard for it is obvious from his appearance in Court that his skin condition could easily be the source of problems for him. However, this argument is not related to the judicial review grounds on which the appeal is based and, regardless of what I think, it is not open to me to accept.

27    The appeal should be dismissed with costs.

Associate:

Dated:    7 March 2018