FEDERAL COURT OF AUSTRALIA

AXZ15 v Minister for Immigration and Border Protection [2018] FCA 623

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The appellant appeals a judgment of the Federal Circuit Court of Australia. The Federal Circuit Court ordered, on 1 August 2016, that an application for judicial review of a decision of the Refugee Review Tribunal (as it then was, now the Administrative Appeals Tribunal) be dismissed with costs. On 13 May 2015, the Tribunal affirmed a decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection, not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth).

BACKGROUND

2    On 20 June 2012, the appellant, a citizen of Sri Lanka and of Tamil ethnicity, arrived in Australia as an unauthorised maritime arrival. On 18 August 2012, the appellant took part in an Irregular Maritime Arrival Entry Interview.

3    On 19 November 2012, the appellant applied for the visa. A migration agent represented him throughout the process.

4    The appellant’s claims are:

(1)    His father had a business dispute with a Sinhalese competitor in Trincomalee, who then threatened to falsely inform the Criminal Investigation Division (CID) that the appellant’s father was involved with the Liberation Tigers of Tamil Eelam (LTTE).

(2)    On about 26 June 2009, four unidentified individuals visited the appellant’s house asking for the appellant’s father and that during this encounter he was threatened with a gun and assaulted causing significant damage to his right eye. These individuals accused his father of helping the LTTE, and accused the appellant of helping his father do this and stated ‘if you continue to help the LTTE again, we will kidnap and torture you’ before they left. The appellant stated at the hearing before the Tribunal, and it was submitted on his behalf, that he believed the individuals were CID.

(3)    On about August 2010, he was approached by two individuals from the Sri Lankan Army (SLA) who enquired what he was up to, pointed a weapon at him and slapped him.

(4)    He raised his concerns about the incidences of the ‘Grease Devils’ against a number of Tamil villagers and the suspicions that the SLA and police were involved. The appellant claimed no involvement with the incidences of the ‘Grease Devils’.

(5)    In May 2012, while he was at his neighbour’s house, an individual from the CID visited him and enquired about the whereabouts of his neighbour and another individual. After discussing the visit by the CID with his father, it was decided that the appellant should leave Sri Lanka.

(6)    In about mid-2012, the appellant held a phone conversation with his father, during which he was informed that a member of the CID came to the appellant’s family home, intimidated his father and made inquiries as to the appellant’s whereabouts. The appellant’s father informed the CID official that he was in Australia and paid 10,000 rupees upon request. The appellant’s father was also provided a letter, dated 27 June 2012, entitled ‘Call for an investigation’ and directing the appellant’s father to present himself for questioning in relation to involvement with an LTTE terrorist.

(7)    In his village, it is normal for the CID to visit residents at night and extort money or kidnap them as a means of intimidating Tamils.

(8)    He will be detained, interrogated, tortured and killed by the Sri Lankan authorities if he was to return to Sri Lanka because of his Tamil race and his status as a failed asylum seeker. The appellant further contends that failed Tamil asylum seekers are regarded as former-LTTE and that the authorities will not protect him if he were to return to Sri Lanka.

BEFORE THE DELEGATE

5    On 18 October 2013, the delegate refused to grant the appellant the visa. The delegate accepted that the appellant suffered some harassment by the Sri Lankan security services, including the SLA, but that neither he nor his father had the pro-LTTE profile that was central to his claims. The delegate did not accept that the CID had continued to look for the appellant since his arrival in Australia.

BEFORE THE TRIBUNAL

6    The Tribunal affirmed the delegate’s decision to refuse to grant the appellant the visa.

7    The Tribunal accepted that unidentified persons came to the appellant’s home looking for his father in 2009, accused his father of helping the LTTE and assaulted the appellant, injuring his eye. The Tribunal accepted that this assault amounted to serious harm. However, the Tribunal did not accept that the men were CID, but were most likely business rivals. This was a conclusion that the Tribunal considered to be consistent with the appellant’s evidence.

8    In relation to August 2010 incident, the Tribunal accepted that this amounted to serious harm. However, the Tribunal found that the incident was random, was not part of systematic targeting of the appellant, and that the incident did not give rise to a risk of further harm in the future.

9    Having regard to the appellant’s concessions that he had not been personally affected by ‘Grease Devil’ attacks, and that such attacks have not occurred since 2011, the Tribunal found that there was no real chance that the appellant would be harmed from such attacks in the future.

10    The Tribunal did not accept that, while visiting the house of a neighbour, an inquiry from the CID posed any risk for the appellant or that he would face a real chance of persecution in the future. This conclusion was reached by the Tribunal following consideration of evidence that the CID individual expressed no interest in the appellant during the incident, did not question him and did not harm him.

11    Whilst the Tribunal accepted that the CID may have visited the appellant’s father in 2012, having regard to the inconsistencies in the documents provided by the appellant, it did not accept that the CID sought to interview the appellant’s father or the appellant in relation to helping the LTTE, that the ‘Call for [an] investigation’ letter was genuine, or that the appellant’s father went into hiding after this visit.

12    Having regard to country information, the Tribunal did not accept that the appellant would be imputed to be an LTTE supporter because of his race, or because he applied for asylum in Australia. It concluded that the appellant did not face a real chance of persecution in the future because he is a Tamil or because he will be imputed to be associated with the LTTE.

13    In relation to the appellant’s claims of being a failed asylum-seeker who left Sri Lanka illegally, the Tribunal found, on the basis of the appellant’s evidence and country information, that the appellant did not face a risk of significant harm and that any questioning, charge, conviction or penalty including detention which the appellant may face ‘would arise under a law of general application’.

14    Having considered all of the circumstances individually and cumulatively, the Tribunal was not satisfied that the appellant satisfied the Refugees Convention criterion set out in s 36(2)(a) of the Act. The Tribunal was also not satisfied, relying on its findings under the Refugees Convention, that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

BEFORE THE FEDERAL CIRCUIT COURT

15    The appellant filed an application for judicial review to the Federal Circuit Court seeking to challenge the Tribunal’s decision on these grounds:

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 Victorian Legal Aid and am waiting for a decision.

16    The application was dismissed: AXZ15 v Minister for Immigration and Anor [2016] FCCA 2162. In relation to ground 1a, the primary judge found that there was nothing in the Tribunal’s decision record which indicated that it was affected by an error of law. In this regard, the primary judge found that the Tribunal properly had regard to its obligations and correctly found that there was a need for actual, subjective intention, in relation to the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’, with reference to SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64.

17    In SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, on appeal, the plurality of the High Court (Kiefel CJ, Nettle and Gordon JJ (at [26]-[27])) and Edelman J (at [114]) held that ‘intention’ connoted an ‘actual, subjective, intent’. The majority went on to hold (at [29]) that while foresight of the risk of pain or suffering or humiliation may support an inference of intention, the Tribunal was entitled to conclude that it was not to be inferred in the circumstances of that case that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation on the appellant so as to engage Australia’s protection obligations.

18    The High Court’s reasoning is relevant to this matter. The Tribunal was not satisfied that the conditions to which the appellant would be subjected while being held on remand would be intentionally inflicted upon him, within the meaning of s 5(1) of the Act. It was open to the Tribunal to so find. No error arises with respect to the Tribunal’s findings.

19    In relation to ground 1b, the primary judge found that the ground of review was not made out in circumstances where the Tribunal complied with its natural justice obligations under Pt 7 of the Act. Notably, the Tribunal validly invited the appellant to a hearing, which he attended with the assistance of both his migration agent and a Tamil interpreter, and canvassed matters of concern with the appellant’s application.

20    The primary judge also had regard to the appellant’s contention concerning legal assistance contained in ground 2, which also arose at the hearing when the appellant sought an adjournment on the basis that he wished to obtain legal advice. The primary judge noted the 14 month period which had elapsed since the filing of the appellant’s application, the absence of any evidence to support any claim that the appellant had approached Victoria Legal Aid for assistance and the absence of evidence that the appellant had approached any other legal-service-provider, even though the Minister had provided the appellant with a list of legal-service-providers and their contact numbers.

21    In light of those considerations, and the necessity for the courts to provide timely hearings to those members of the public seeking access to the courts’ resources, the application for an adjournment was dismissed.

THE NOTICE OF APPEAL

22    The notice of appeal, filed 15 August 2016, advances four grounds of appeal before this Court. These grounds differ from the grounds of review relied upon before the Federal Circuit Court. The appellant’s grounds of appeal are as follows:

1.    The Tribunal accepted that the applicant would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly not assessed this integer claim and fell into jurisdictional error.

2.    The [primary] judge erred by holding with the Tribunal that the appellant’s claim was cumulatively assessed but it was not.

3.    The Tribunal erred jurisdictionally by breaching section 424A of the Act. It has not given to the appellant clear particulars pursuant to subsection (1) and acted in haste and refused the application. The Tribunal erred and misconstrued the obligation imposed on the Tribunal under the [Act].

4.    The appellant reserved his right to amend the grounds of appeal when the reason for the [primary] judge’s decision comes to hand.

23    To the extent that the appellant requires leave of the Court to raise the new grounds of appeal because the arguments, as currently pleaded, were not raised before the Federal Circuit Court, there is insufficient merit in the grounds for leave to be granted: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 per Kiefel, Weinberg and Stone JJ (at [46]–[48]) and the cases therein cited; Kaur v Minister for Immigration and Border Protection [2013] FCA 1333 per Mortimer J (at [33]). The Court must be satisfied that it is expedient in the interests of justice for arguments to be considered for the first time on appeal which were not before the primary judge: O’Brien v Kothesaroff (1982) 150 CLR 310 per Mason J (at 319).

CONSIDERATION

Ground 1

24    This ground of appeal is misconceived as the Tribunal did not accept that there was a real chance that the appellant would be detained or otherwise mistreated on return to Sri Lanka because of an imputed LTTE association arising because he sought asylum in Australia.

25    The Tribunal considered whether the appellant would face a real chance or real risk of harm as a result of being charged for departing Sri Lanka illegally, and was satisfied that the appellant would be held in remand for a short period. The Tribunal considered whether this amounted to serious harm, and found, relying on country information, that the appellant did not have a profile which would cause him to be targeted whilst in custody and concluded that the appellant did not face a real chance of serious harm for departing the country illegally. The Tribunal was also not satisfied that any treatment the appellant might face in prison would amount to significant harm.

26    These findings were open to the Tribunal for the reasons it gave. The appellant is asking the Court to undertake a review of the merits of the Tribunal’s decision, which is impermissible.

Ground 2

27    By this ground, the appellant is again inviting the Court to partake in an impermissible merits review of the Tribunal’s decision. The Tribunal found that the appellant did not face a real chance of persecution on return to Sri Lanka because of his race, political opinion or as a member of various particular social groups, separately or cumulatively, and relied on these findings when determining there was not a real risk he would suffer significant harm. These findings were open for the reasons the Tribunal gave, and this ground of appeal will not be permitted.

Ground 3

28    This ground is also misconceived. The Tribunal did not put information to the appellant in accordance with s 424A(1) of the Act. Rather, it invited the appellant to a hearing under s 425, which he attended. The Tribunal’s obligations under s 424A(1) did not arise in this case. Its obligation does not apply to information that is not specifically about the appellant and just about a class of persons of which the appellant is a member (s 424A(3)(a)), to information that the appellant gives during the process that leads to the decision under review (s 424A(3)(ba)), or to information that the appellant gives for the purpose of the review application (s 424A(3)(b)). This ground of appeal will not be permitted.

Ground 4

29    This is not a proper ground of appeal and will not be permitted.

FURTHER EVIDENCE

30    On the hearing before me, the appellant tendered a print out of an online 2012 news story from the BBC as being evidence of something similar to what happened to him. It was not before the Tribunal. If relevant, it could have been put before the Tribunal. The print out was not admissible.

CONCLUSION

31    None of the new grounds will be permitted. No relevant error is otherwise demonstrated.

32    The appeal must be dismissed with costs.

Associate:

Dated:    8 May 2018