FEDERAL COURT OF AUSTRALIA

AOJ18 v Minister for Home Affairs [2018] FCAFC 220

Appeal from:

AOJ18 v Minister for Home Affairs [2018] FCCA 1728

File number:

NSD 1234 of 2018

Judges:

GRIFFITHS, GLEESON AND COLVIN JJ

Date of judgment:

7 December 2018

Catchwords:

MIGRATION - appeal from the Federal Circuit Court of Australia which dismissed a judicial review application relating to a decision of the Immigration Assessment Authority not to grant a protection visa - whether primary judge erred in failing to find jurisdictional error - consideration of nature and extent of Authority’s finding concerning alleged attack in appellant’s home in 2012 - whether Authority’s conclusion was legally unreasonable - no jurisdictional error - appeal dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287

Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Date of hearing:

30 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

34

Counsel for the Appellant:

Mr O Jones (Pro Bono)

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

Minter Ellison Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1234 of 2018

BETWEEN:

AOJ18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGES:

GRIFFITHS, GLEESON AND COLVIN JJ

DATE OF ORDER:

7 DECEMBER 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondents costs 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

THE COURT:

1    The appellant travelled to Australia by boat from Sri Lanka in 2012. The boat was intercepted and he was taken to Christmas Island. His entry interview was conducted on 31 October 2012. His response to a number of standard form questions was recorded. As to the question Why did you leave your country of nationality? his answer is recorded as Because of the threat of the army in Sri Lanka I left the country. I don’t know for what reason they arrested me in 1998 also they harassed me. Then again they took me in 1999. 28/05/2012 I was attacked while at home by I don’t know who they were. This appeal concerns the significance for the appellants application for a protection visa of the claim in the last sentence, namely that he was attacked in his home in 2012 not long before he left for Australia. As to that claim, he said he believed that the attackers were associated with the Sri Lankan authorities.

The appellants claims

2    In support of his application for a visa, the appellant provided a statement in which he described a history of arrest, detention and torture in 1998 and 1999 and requirements that that he report to an army camp. He described living and working in Qatar after that because it was too unsafe to go back to his village. He said he returned in 2008 and was told to go to a camp where he was beaten and was again required to report regularly.

3    The events when the appellant was beaten and tortured in 1998 and 1999 while he was detained and which left him physically and mentally scarred were accepted by the Immigration Assessment Authority when considering a review of the refusal of the appellant’s application for a protection visa. The appeal focusses upon how the Authority dealt with what happened later, in 2012.

4    As to what happened in 2012, the appellant’s statement in support of his application said (paras 14-15):

I then applied for the passport alone and managed to travel to India for 1 week but returned back to Sri Lanka soon after because of my wife and child.

After returning from India to Sri Lanka on about 13 July 2012, an unknown person came to my house and beat up me and my family. For my safety I went to the hospital. A neighbour told me about a boat that was leaving Sri Lanka from Batticaloa. I decided it was the best way for me to get to safety so I got onto a small boat on 26 September 2012 which brought me to a larger boat that left for Australia.

5    The statement did not mention an attack in his home in May 2012.

6    The statement went on to describe the appellant’s fear as to what would happen if he returned to Sri Lanka in the following terms (paras 18-20):

I fear persecution by the CID if I return to Sri Lanka.

The CID is likely to kill me if I return to Sri Lanka because of the threats they had made while I was in Sri Lanka. Ever since they had taken and tortured me I had always been suffering mentally. Without medication I am unable to lead life normally.

Also I am a target because of my Tamil ethnicity. The Tamils are often associated with the LTTE and are killed without reason by the army. I do not want to end up like them.

7    As to why he would not be protected by the authorities if he returned, he said (para 22):

The Sri Lanka government is unable to protect me when I go back because they are the ones that are persecuting me. They do not provide security for me and have been threatening to kill me since I was captured.

8    On 16 August 2017, the appellant was requested to attend an interview to discuss his visa application and his claims to protection. On 30 August 2017, he attended the interview. He was accompanied by a migration agent. After the interview, the migration agent provided a written submission to support his application.

9    In the summary of claims the submission said, amongst other things, that the appellant was pursued and had to comply with strict reporting conditions for his suspected association with LTTE from June 1998 till he departed Sri Lanka in September 2012. The submission also stated that:

…in 2012, a few men dressed in plain clothes but who [the appellant] suspects were men from the CID came to his house and assaulted him quite [sic] violently. [The appellant] suspects that he might have been visited as a few of his school mates and friends who had been involved with the LTTE had just come on to the CID’s radar. [The appellant] already had a profile with the CID and this probably exacerbated the CID’s suspicions.

10    The submission enclosed an additional statement from the appellant which was said to outline his familial links to the LTTE.

11    The submission and the statement gave an account of what the appellant said occurred in 2012 when he was attacked in his house. As to what happened in 2012, the appellant said in his statement (paras 5-12):

My family had always supported LTTE and due my brother being killed by the army, their commitment to the cause, deepened. My parents were invited as honorary guests at the very first Martyrs day function in Vavuniya in 1990. My brother was the first martyr from Vavuniya and that is why my parents were being honoured. I was also in attendance on that day. My parents continued to be active participants in this function until 1999.

Vavuniya was a LTTE controlled area until about 1998 and the year that the Sri Lankan army were able to enter the area, I was arrested i.e. 1998. As I have stated earlier, the Sri Lankan army came to my house and I was the eldest male present in the house, they asked me to follow them to a building close to my house. Upon arriving, I saw that they also rounded 3 other individuals. I have mentioned this in my earlier statement. I was blind folded and I was asked for my National ID card. I did not have at with me at the time and they took me to the army camp. The others that had been brought with me were released after questioning however I was detained.

My detention history and torture has been stated in my earlier statement in paragraphs 8 through to 10. In 1999 after I was realised from the camp, I decided to join the Danish Demining in Trincomallee. I decided to join this company as it was owned by foreigners who were treated favourably by the authorities. Being employed by them also allowed me to move away from Vavuniya. This was from 2001 through to 2002.

In Vavuniya, I had been told to report to the army camp once a week, one kilometre away from my house, however as I had moved to Trincomallee, I had not been able to comply with this. I would visit home once every few months and report to the army camp then. There weren’t any issues with this until about 2002 when the Army came to my house and enquired about my whereabouts.

As stated in my earlier statement, this is why I decided to leave and work in Qatar. I remained until 2008. The Army came to the house in my absence however as my family denied knowing my whereabouts, they stopped coming.

I have mentioned what occurred after I returned in my earlier statement. From 2008 through to 2012, I was asked to continually report to the camp close to my house. By this stage, I had married my wife who was a Christian. We were estranged from my family who are Hindu and they essentially deemed me an outcast by this stage. I was compliant with the reporting conditions. In 2012, unknown individuals came to my house and assaulted me. Even though they were wearing plain clothes I suspected that they were with the CID. I think I was visited at this stage, as a few of my school mates and friends who were involved with the LTTE. These men were speaking in Singhalese and I could not understand what they were saying however I knew they were asking about my friends as they kept saying their names. My wife started screaming and crying very loudly and a few of our neighbours emerged as well. Due to this perhaps they did not kill me, however I sustained grievous wounds due to this.

After this incident and due to my past history of being continually harassed and tortured, my wife was extremely scared and anxious for my life. As we had a young daughter, my wife compelled me to leave for India. We applied for passports for the whole family. A sign off from CID is required for this. I was asked to attended a CID interview in order to get the signature. They asked me why I was leaving and I said that I was going to visit my sick mother-in-law in India. They said they would approve my visit however they held on to my family ID card. They said they would return this only on my return and only one of us could go to India i.e. either my wife or I could go to India. My wife asked me to go. I was in India for 6 days but was unable to arrange anything for myself. I returned to Sri Lanka as I was very anxious about my wife and daughter and in order to get back my family’s ID card.

As detailed in my earlier statement, I was informed about a boat leaving Sri Lanka. My wife begged me to leave and said that she would be fine as the CID had no interest in her. The authorities visited my residence a few times since my departure but my wife always denied knowing my whereabouts and they stopped coming.

12    Based upon the matters in the statement, the submission described reasons for the appellant’s fear of persecution. Many of the claims were expressed as concerns about actual or imputed political opinion arising from facts that connected him with the LTTE. They were stated in the following terms:

Actual and or Imputed Political Opinion

    His actual and/or imputed political opinion due to his close familial relationship with his brother was an LTTE member, who was killed in battle against the Sri Lankan army;

    His imputed LTTE opinion due to his detention in Joseph Camp and his reporting conditions that were imposed upon him;

    His imputed LTTE association due to the disappearance of his brother, … in 2004;

    His imputed and actual political opinion to be against the Sri Lankan government for being a young Tamil male from the Northern Province who departed Sri Lanka illegally and claimed asylum in a Western Country; and

    His imputed association with the LTTE because of his visible scarring on his body.

13    The submission then described the source of persecution in the following terms:

Our client’s feared persecutors are the Sri Lankan government and all agents working within it, such as the CID, TID or the SLA. We submit that our client faces a real chance of serious harm in all areas of Sri Lanka as the agent of persecution is the Sri Lankan government and they control the entirety of the country, thus ensuring that there is no effective protection available.

14    In the above circumstances, the appellant’s evidence that he was attacked in his home in 2012 was advanced to support a claim that if he was returned to Sri Lanka he was at risk of being harmed by the Sri Lankan authorities for his actual or imputed association with the LTTE. The claim was not confined to a risk of harm by the CID. It extended to a risk of harm from all agents working within the Sri Lankan government. He did not advance a claim to a risk of harm from unknown persons in circumstances where the Sri Lankan authorities would not afford him any protection. Nor did he advance evidence to support such a claim. Rather, his claim was squarely one where the risk to him was said to be from the authorities by reason of his association with the LTTE.

The appellants application for a protection visa

15    As we have indicated, the appellant’s visa application was considered and refused. The appellant sought review by the Immigration Assessment Authority. The Authority affirmed the refusal.

16    An application for judicial review was dismissed by the Federal Circuit Court. The appellant now brings an appeal. A single ground is advanced in support of the appeal. It is expressed in the following terms:

One of the [appellant’s] claims was that in May or July 2012 a group of people who spoke Sinhala came to the [appellant’s] home armed with chains and beat the [appellant]. The Immigration Assessment Authority (“the IAA”) found that I do not accept that the applicant was beaten by the CID or others at his home in May 2012’. The IAA provided a reason for its finding that the CID did not attack and beat the [appellant] at his home in May 2012. However, the IAA provided no reason for its finding that persons other than the CID did not carry out the attack. In the circumstances, the Federal Circuit Court should have found that IAA fell into jurisdictional error in not accepting that the [appellant] was beaten by ‘others’ at his home in May 2012.

The reasons of the Authority

17    At the outset of its reasons, the Authority accurately described the claims made by the appellant in support of his application for a protection visa in the following terms:

He claims that he fears harm from the Sri Lankan authorities because he will be imputed with a Liberation of Tigers of Tamil Eelam (LTTE) profile.

18    After accepting the evidence of the appellant as to the beating and torture inflicted upon him in 1998 and 1999 (paras 11-12), the Authority found that there was no interest in the appellant by the Sri Lankan authorities from 2002 to 2004 (para 16). The Authority accepted that from 2008 when the appellant returned from abroad he was required to report regularly to authorities and it was plausible that he was mistreated by the authorities on occasions when he reported (para 22). However, the Authority found that the authorities had no interest in the appellant beyond him being a Tamil. It reasoned that because thousands of Tamils suspected of LTTE links at that time were detained, placed in rehabilitation or prosecuted and the appellant made no such claim it followed that he was not then suspected by the authorities of having such links (para 22).

19    As to the attack in the family home in 2012, the Authority noted inconsistencies in the account. Those were inconsistencies at least in the dates given and whether there was one man (first statement) or a number of men (second statement) involved in the attack. The Authority also found certain aspects of the events as described by the appellant to be implausible and did not accept his account for a number of reasons. The Authority provided reasons as to why it was of that view. Significantly, at the end of the relevant passage of reasoning (para 23), the Authority said:

There is no indication that any other incident occurred at this time or that there was any other reason for the authorities to escalate their interest in the applicant beyond the already in place regular reporting and questioning. It is also difficult to accept that the CID had reason to beat him in May 2012 yet gave him permission to travel to India in the next month. I do not accept that the applicant was beaten by the CID, or others, at his home in May 2012.

20    It is significant that the conclusion was introduced by referring to whether there was any reason for the authorities’ to escalate their interest. This indicates that the Tribunal was dealing with whether Sri Lankan authorities other than the CID may have attacked the appellant. This was consistent with the way the appellant’s claim has been expressed in the submission and which referred to all government ‘agents’.

21    Further, the focus on the CID in the reasoning of the Authority to this point is understandable because it was dealing with the basis for the appellant’s belief that the CID was responsible for the attack. The Authority gave detailed reasons for its view that there was a proper basis for the belief that the CID was involved. The analysis assumed that the attack had occurred and assessed whether it might be concluded that the CID had been responsible.

22    The Authority then dealt with evidence as to what was said to have occurred after May 2012 and reasoned that those matters also supported its earlier conclusion.

23    Having regard to the fact that the claim made was that the appellant was at risk of harm from the authorities if he was to return to Sri Lanka and the claim from the appellant that he believed the persons who came to his home were from the CID, the finding that the appellant was not beaten at his home ‘by the CID, or others’ records a finding that the appellant was not beaten by the CID or other persons representing the Sri Lankan authorities. The way in which findings are expressed earlier in the reasons (particularly by finding there was no attack in July 2012, but then describing the attack in terms that assumed there were assailants at the appellant’s home in May 2012) lend support for this view.

24    Further, in the conclusion as to the factual account (par30), the Authority said:

I have not accepted that a number of incidents occurred in the manner described by the applicant, nor have I accepted that beyond being a Tamil that he has an LTTE profile, or other profile of concern to the authorities. Despite my concerns about a number of claims, in particular those related to events after 2002, I accept that the applicant has experienced significant trauma in Sri Lanka and that this can be linked, at least partially if not fully, to his detention and torture in 1998 and 1999.

Expressed in that way, the conclusion is not indicating a complete rejection of the appellant’s account as to being harmed in 2012. There is no statement to the effect that the appellant was not attacked at his home in 2012. Rather, it can be seen that the focus of the conclusion is upon dealing with the claim that there was a risk of harm from the authorities by reason of an LTTE profile. The Authority has only made a finding as to whether the events described in May 2012 support such a claim. It has not dealt with whether there was harm inflicted on the appellant in 2012 by persons who were not associated with the authorities in Sri Lanka. Rather, it has found that there was no evidence of involvement of the authorities. Given the way the claim was advanced it was not necessary for the Authority to go further and consider whether others not associated with the authorities might have been involved.

The reasons of the primary judge

25    Before the primary judge, the appeal ground covering the claim concerning the events at the appellant’s home in 2012 was to the effect that no reasons were provided ‘for the finding that persons other than the CID did not carry out the attack’. It appears that before the primary judge (as on appeal) the Authority’s reasoning was characterised as a rejection of the claim that the appellant was beaten. As we have explained, in context, the Authority’s finding should not be read that way.

26    Nevertheless, the primary judge dealt with the ground as the basis that there had been a finding by the Authority that the appellant had not been attacked in his home in 2012 at all. The primary judge set out the Tribunals findings which concerned whether the appellant had been attacked by the CID. His Honour then simply concluded:

The Authority then found on the basis of those reasons that it did not accept that the applicant was beaten by the CID or others at his home in May 2012. That was an adverse finding that was open to the Authority for the reasons given by the Authority and cannot be said to be illogical or unreasonable.

27    So the case was dealt with below on the basis that there had been reasoning to support a conclusion that there had been no attack at the applicant’s home in 2012. Contrary to the primary judge’s finding there was no such reasoning. However for reasons we have given that error by the primary judge was itself premised on an incorrect understanding of the Authority’s own finding. There was no finding by the Authority that the attack at the house had not occurred.

The appellant’s contentions

28    Contrary to the submissions advanced for the appellant, the present case is not of the kind described by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. Those cases are concerned with decisions where there is no evident and intelligible justification for a decision made in the exercise of a discretionary power.

29    It was suggested that this was a case where the Authority should have considered a claim based upon whether there was a risk of harm from persons other than the Sri Lankan authorities from which the appellant would not be protected by the institutions required to maintain law and order. As to those instances where it is said that a claim that arose on the materials should have been considered even though it was not articulated as a claim by the applicant, the following passage in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J) was approved by the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70]:

Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

30    A claim based upon alleged harm from persons other than the authorities was not appreciated by the Authority nor should it have appreciated that such a claim arose. This is not a case where it could be said that there was a claim of the kind alleged that arose in the circumstances presented to the Authority because the case advanced by the appellant was focussed consistently upon whether there was a risk of harm to him from the Sri Lankan authorities.

31    It has been held that the factual findings of the Tribunal must be rationally made and based on probative material and logical grounds. Further, there may be jurisdictional error where a finding on credit on an objectively minor matter of fact is used as a basis for the Tribunal to reject the entirety of the claimant’s evidence. As to these matters, see: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]-[55]. The approach to be applied in considering whether there has been a jurisdictional error of that kind was recently summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]. Applying these principles, the finding that the Sri Lankan authorities were not involved in an attack at the appellant’s home in May 2012 has not been shown to follow an illogical, irrational or unsupported reasoning process. There are many matters identified by the Authority to support its factual conclusion, including inconsistency in the appellant’s accounts, the Authority’s view as to the implausibility of particular matters and the conduct of the appellant in returning to his home after only one week away in India. As observed by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question in cases where unreasonableness in a conclusion reached as to factual matters is whether a decision-maker could reasonably come to the conclusion. Where there is nothing more than an identification of matters that might cause reasonable minds to differ that requirement is not established. The submissions by the appellant did not rise above that character.

32    Even if, contrary to the conclusion we have reached, the Authority did find that the appellant had not been attacked at his home by anyone then that was an error that was immaterial. For reasons we have given, no claim was advanced by the appellant to the effect that he was exposed to a risk of harm from private persons whose activities were contained by the authorities or there was no protection from attacks by non-state actors: contrast Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1. On the contrary the appellant’s claim was that he was not protected because it was the authorities who were responsible. Therefore, the material finding was whether the authorities were involved in the attack. Detailed reasons were given for concluding they were not involved and there is no challenge to that conclusion. Beyond that it was immaterial to the appellant’s claim whether non-state actors were involved. An error that could not have resulted in a different decision does not give rise to jurisdictional error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31].

Conclusion

33    Therefore, no error has been demonstrated in those aspects of the decision of the Authority that dealt with the events in May 2012.

34    It follows that the primary judge was correct to find that the matters raised by the appeal ground did not demonstrate jurisdictional error and the appeal should be dismissed with costs.

35    I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Griffiths, Gleeson and Colvin.

Associate:

Dated:    7 December 2018