FEDERAL COURT OF AUSTRALIA

AYT15 v Minister for Immigration and Border Protection [2018] FCA 1444

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka. He arrived on Christmas Island as an irregular maritime arrival in June 2012 and has applied for a Protection (Class XA) Visa (Visa). The appellant claims protection, in broad terms, on the basis that he is an ethnic Tamil and a Sunni Muslim. He claims that he was arrested by the Sri Lankan police after being found near the location of a bomb blast in his home town in 2006 and since then has faced regular harassment. He also claims that in 2011 he ran as a candidate in local elections for the Sri Lankan Muslim Congress (SLMC) party and was further harassed by the police and others. In 2012 a local mosque was burnt down, inciting demonstrations in the streets and resulting in the Criminal Investigation Department taking many young men and many others leaving the area. He fears that if he returns to Sri Lanka he will be abducted or killed.

2    A delegate (delegate) of the Minister for Home Affairs (Minister) considered the appellant’s visa application and on 29 July 2013 decided that it should be refused because he was not satisfied that Australia owes protection obligations to the appellant pursuant to s 36 of the Migration Act 1958 (Cth) (Act) and clause 866.221 of Schedule 2 to the Migration Regulations 1994(Cth). The appellant then applied to the Administrative Appeals Tribunal (Tribunal) for a review of the decision of the delegate. On 14 May 2015 the Tribunal affirmed the decision of the delegate.

3    The appellant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the decision of the Tribunal, and on 28 March 2018 that Court gave a decision dismissing the application; AYT15 v Minister for Immigration and Border Protection [2018] FCCA 688.

4    On 9 April 2018 the appellant filed a notice of appeal from the decision of the FCCA in this Court. In it he sought orders that the matter be remitted to the Tribunal for consideration in accordance with the law. The grounds upon which the appellant relies are as follows:

1.    The learned judge erred in holding that the Tribunal has assessed and rejected the appellant’s integer claim cumulatively being a Tamil Muslim of Islamic faith, associated with [Liberation Tigers of Tamil Eelam (LTTE)] and a candidate of the SLMC political party. The assessment and rejection of the appellant’s integer claim was so illogical and irrational reasoning process which resulted in a jurisdictional error. [sic]

2.    The Tribunal operates in an inquisitorial manner and failed to assess whether the appellant will be deprived the freedom of worship in the foreseeable future due to many Mosques being destroyed in Sri Lanka.

5     The appellant appeared at the hearing with the assistance of a Sinhalese interpreter and represented himself. He filed no written submissions. The Minister was represented by its solicitors Sparke Helmore and filed written submissions in advance of the hearing.

2.    THE DECISION OF THE TRIBUNAL

6    The appellant attended the hearing before the Tribunal and gave evidence with the assistance of an interpreter. He was represented in relation to the review by a registered migration agent.

7    The Tribunal summarised the several claims for protection advanced by the appellant as involving; a claim that he was harmed in the past by the Sri Lankan authorities on suspicion of involvement with the LTTE because of a bomb blast; a claim that he was harmed by paramilitary and the Sri Lankan authorities because he stood as a candidate in local elections for the SLMC in 2011; a claim to fear harm from extremist Sinhalese Buddhists and the Sri Lankan authorities because he is a Muslim; a claim that the Sri Lankan authorities have continued looking for him; and a claim that he will be harmed by the Sri Lankan authorities because he is a Tamil, applied for asylum in Australia and departed Sri Lanka illegally.

8    In relation to his claim that he was a candidate for the SLMC, the Tribunal considered the appellant’s oral evidence and documents that he had supplied in support, and found that it is plausible that he was once a member of that party and that he had assisted in the past with low level campaigning. However, on the basis of his apparent ignorance of basic aspects of the operation of the party and his claimed role in it, the Tribunal rejected his claim that he was a candidate for the SLMC, rejected that he had been threatened or beaten because of his role as a candidate, and found that he had fabricated these claims in order to create a profile upon which to base his application for protection.

9    In relation to his claim to have suffered harm as a result of his Tamil ethnicity and imputed pro-LTTE political opinions, the Tribunal was willing give the applicant the benefit of the doubt for his claim that he had been detained by the police in 2006 after the bomb blast, but considered that he fabricated his claims that the police continued to contact him about that event after he was freed by the court, and that the case remained open against him. The Tribunal found that on the basis of country information to which the Tribunal had regard, the appellant would not be imputed with any anti-government or pro-LTTE opinion because he is a Tamil or because he lived or worked in a Tamil area or was previously released by the court. It considered that it was only speculative (and therefore not a real chance) that he would be questioned, detained, assaulted, abducted or killed or suffer any serious harm by the Sri Lankan authorities because of his race, membership of a social or political group or for any other Convention reason.

10    In relation to the appellant’s claim that he would suffer harm as a failed asylum seeker, the Tribunal noted the available country information and concluded that he did not have a profile of someone with links to the LTTE and that he would not be targeted for harm upon his return to Sri Lanka as a result of applying for asylum in Australia. The Tribunal considered the appellant’s claim that he would be harmed because he departed Sri Lanka illegally. It considered that any period that the appellant spends on remand as a result of the application of the Sri Lankan Immigrants and Emigrants Act would be as a result of the general application of that law, and would not therefore amount to persecution. The Tribunal found that, since prison sentences enforced under the IEA are routinely suspended, there is no real chance that he will face a term of imprisonment for the offence of illegally departing Sri Lanka.

11    The Tribunal then turned to consider the appellant’s claim to fear harm from extremist Sinhalese Buddhists and the Sri Lankan authorities because he is a Muslim. It noted that he had claimed there was a protest organised by the mosque in his home village in 2012, following which the Criminal Investigation Department (CID) searched for him. He also claimed that Sinhalese Buddhists have destroyed many mosques in Sri Lanka. The Tribunal noted that at the hearing the appellant had stated that he feared that if there was an attempt to damage the mosque in his home village, he would take steps to stop that from happening and he may be harmed in that process. He confirmed to the Tribunal that he had no other fears arising from his being a Muslim.

12    After considering the available country information the Tribunal concluded that there was no large scale protest or rally arranged by the appellant’s mosque in 2012. It also concluded that the police were not looking for him, that documents provided to the Tribunal following the conclusion of the hearing to support the proposition that the CID were looking for him were to be accorded little to no weight, and that the appellant had fabricated these claims in order to create a profile upon which he could make an application for protection.

13    At [61] of its reasons, the Tribunal states that it has considered the claims of the appellant individually and cumulatively, and formed the view that he faced no serious harm in the past. It was not satisfied that the applicant faces a real chance of serious harm in the future. It then proceeded to consider the appellant’s claims further in relation to complementary protection pursuant to s 36(2)(aa) of the Act and determined that it was not satisfied that he met the criterion in that section.

3.    CONSIDERATION OF THE GROUNDS OF APPEAL

3.1    The grounds of appeal and grounds relied upon in the FCCA

14    The appellant appeared before the FCCA with the assistance of an interpreter and represented himself. He relied on the following grounds of review:

1.    The Tribunal has erred and fell into jurisdictional error by not assessing the applicant’s integer claims cumulatively being of a Tamil Muslim of Islamic faith, associated with LTTE and a candidate of a political party known as SLMC.

2.    The Tribunal has not assessed his claim that he will be deprived his freedom of worship in the foreseeable future due to many Mosques being destroyed in Sri Lanka.

3.    The Tribunal’s finding that a relatively short period of remand or incarceration of the applicant on his return is not amount to serious harm under 91R of the Migration Act is contrary to recent Federal Court finding in WZAPN-V-MIBP [2014] 947.

15    I have in [4] above set out the grounds advanced in the present appeal.

16    It will be seen that ground 1 before the primary judge is related to ground 1 in the present appeal, in that in the latter the appellant similarly contends that the primary judge erred by failing to find that the Tribunal had not assessed the appellant’s claims cumulatively having regard to his faith, his association with the LTTE and his candidacy as a member for the SLMC. However, in this appeal, the appellant also contends that the assessment by the Tribunal was also illogical and irrational so as to result in jurisdictional error. That ground was not advanced before the FCCA and leave is required to advance it for the first time on appeal; Decor Corporation Pty Ltd & Anor v Dart Industries Inc. [1991] FCA 844; (1991) 33 FCR 397. I turn to consider this ground in Section 3.2 below.

17    It will be noted that grounds 2 and 3 as advanced before the FCCA are not agitated in the present appeal. However, ground 2 in the present appeal was not advanced below. In it, the appellant asserts that the Tribunal operates in an inquisitorial manner and that the Tribunal failed to assess whether the appellant will be deprived the freedom of worship in the foreseeable future due to many mosques being destroyed in Sri Lanka. Leave is required before this ground can be advanced.

18    In oral submissions the appellant contended that in Sri Lanka, Muslims are still persecuted, that last year there was still unrest in the country and that the police are still looking for him in Sri Lanka. Although he advanced no specific criticism of the decision of the Tribunal or the FCCA, it is apparent from these submissions that the appellant wishes to challenge the merits of the decisions below.

19    It is accordingly apposite to 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, as their Honours then were). 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).

3.2    Ground 1: failure to consider claims cumulatively

20    In this ground the appellant first contends that the primary judge erred in finding that the Tribunal had assessed and rejected his claims as to being a Tamil Muslim who was associated with the LTTE and a candidate of the SLMC political party cumulatively.

21    In my respectful opinion, the Tribunal clearly and squarely addressed these claims and the learned primary judge was correct to conclude that it did. In this regard, I note that at [35] the primary judge said:

The Tribunal’s Reasons confirm that the following approach was adopted by the Tribunal in its assessment of the applicant’s claims:

(a)     the Tribunal was conscious of the applicant’s level of education and that he had given evidence, with the assistance of an interpreter, in a language other than his first language. It identified the principles upon which it would proceed in conducting an evaluation of the applicant’s claims;

(b)     it considered the applicant’s home village as the place where he had spent the majority of his life;

(c)     Claims: the Tribunal identified each of the applicant’s claims and considered them in turn: Reasons, [21]ff;

(d)     SLMC Candidacy: the Tribunal accepted that the applicant had been, but was no longer, a member of this political party and rejected as fabrications two letters written in English which the applicant provided after the hearing in support of this claim. It accepted that the applicant had once provided low level support at political campaigns but rejected claims that he had stood as a candidate or that he had been beaten or threatened by opposition supporters or by the police. The Tribunal concluded that the applicant had fabricated those claims in order to create a profile upon which to advance his application. It rejected the applicant’s claim to past harm on account of his past political affiliations and considered the prospect of him suffering harm in the future as remote and speculative;

(e)     Tamil: pro-LTTE: the Tribunal was prepared to give the applicant the benefit of the doubt that he had been arrested and detained following the bomb blast in 2006. It observed that the applicant had been released and found not guilty. It found that the applicant had fabricated claims of ongoing contact from or harassment by police, or that there was an open file on this investigation. It did not accept that the applicant would be imputed with any anti-government or pro-LTTE opinion by reason that he was a Tamil, had worked and lived in a Tamil area or had been released following detention after the 2006 bomb blast. It considered, but rejected, the applicant’s claim to past harm on this account and considered the prospect of him suffering harm by reason of being arrested, detained, assaulted, abduct or killed in the future as remote and speculative;

(f)    Failed asylum seeker: based on country information and the applicant’s circumstances, the Tribunal found that the applicant would not be imputed with an anti-government or pro-LTTE political opinion because he would be returned to Sri Lanka as a person who had applied for asylum overseas. It had regard to a range of country information respecting the treatment of thousands of asylum seekers who had returned to Sri Lanka since 2009. Noting that there were relatively few reports of such persons being mistreated, the applicant was asked to but had no comment on this issue. The Tribunal was not satisfied that the applicant faced a real chance of serious harm because of any imputed political opinion or affiliation or membership of any particular social group arising as a risk upon return to Sri Lanka either now or in the reasonably foreseeable future;

(g)     Illegal departure from Sri Lanka: the Tribunal rejected this claim, noting that the usual practice was for such persons to be held in remand for a short period, released, and then fined. The Tribunal put to the applicant that the only persons upon whom a custodial sentence was imposed were smugglers. Asked as to this, again the applicant had no comment;

(h)     Sunni Muslim: The applicant’s evidence before the Tribunal was that he feared harm arising from the steps which he would take in response to attempts to damage Mosques – he identified no other fear of harm on this account. While there had been serious incidents in other parts of Sri Lanka in 2011, 2012 and 2013, these had involved damage to property and not harm to individuals. The applicant was unable to identify other incidents of such damage in or near his own village. The Tribunal rejected (as recent invention) and placed no weight on letters produced by the applicant in support of a claim that he had been identified as an organiser of protests against attacks on Mosques. It rejected as fabrications, claims by the applicant that he had organised a large scale protest in his home village in 2012 or that the police had sought him out;

(i)     Complementary protection: the Tribunal accepted on the basis of country information that historically, there had been a degree of harassment and discrimination against Tamils in Sri Lanka. It was not satisfied that the kinds of treatment experienced by Tamils constituted serious or significant harm;

(j)     Illegal departure: the Tribunal had regard to the treatment that the applicant may suffer on being returned to Sri Lanka. It considered the nature of the questioning he would face, his conditions on bail and in detention, and the fine which may be imposed. It was not satisfied that the suffering caused to persons being detained in prison was intentionally inflicted.

22    Furthermore, as I have noted above, the Tribunal expressly stated that it had considered the claims of the appellant “individually and cumulatively” (at [61] of the Tribunal’s reasons).

23    Accordingly, in my view the conclusion expressed by the learned primary judge at [37] to the effect that the Tribunal properly considered each of the appellant’s claims was correct.

24    The second part of ground 1 presently advanced is to the effect that the Tribunal’s assessment and rejection of the appellant’s claim was so illogical and irrational as to result in jurisdictional error. This is a ground that was not advanced before the primary judge. The principles concerning illogical and irrational reasons do not require restating here. No particulars were provided by the appellant as to the basis upon which he advanced this allegation. Having reviewed the reasons of the Tribunal, in my view it was open to it to reach the conclusions that it did, having regard to the materials that were before it. Accordingly, I do not grant leave to rely on this additional ground of appeal.

3.3    Ground 2: failure to assess

25    In ground 2 the appellant contends that the Tribunal operates in an inquisitorial manner and that it failed to assess whether the appellant will be deprived the freedom to worship in the foreseeable future due to many mosques being destroyed in Sri Lanka. As I have noted, this ground was also not agitated before the FCCA.

26    In considering whether leave to rely on this ground should be granted, the Court considers whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong; Decor Corporation Pty Ltd & Anor v Dart Industries Inc. [1991] FCA 844; (1991) 33 FCR 397. In my view it is not in the interests of justice to grant leave to rely on this additional ground. It advances a claim of perceived harm that was not advanced before the Tribunal at all. Previously, claims had been advanced concerning the likelihood that the appellant would suffer harm as a result of his Muslim faith and Tamil ethnicity, but no claim has until now been advanced to the effect that the destruction of mosques in Sri Lanka would deprive the appellant of freedom to worship. No explanation has been provided as to why the new claim is advanced now. As I have noted, this appeal is not the occasion for a merits review of the appellant’s claim, or for the consideration of new claims.

4.    DISPOSITION

27    For the reasons set out above, the appeal must be dismissed. The appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    21 September 2018