FEDERAL COURT OF AUSTRALIA

MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant is a 38 year-old Sri Lankan man of Tamil ethnicity. He travelled to Australia by boat and arrived at Christmas Island, without a visa, on 10 June 2012. On 8 September 2013 he applied for a Protection (Class XA) visa (“protection visa”). He claimed that he had a well-founded fear of persecution in Sri Lanka and that Australia owed him protection obligations under the 1951 Convention Relating to the Status of Refugees (“the Convention”) and complementary protection obligations, pursuant to ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (“the Act”). A delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the visa application on 9 January 2013.

2    The appellant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision, but the Tribunal affirmed the decision on 2 December 2013. On 23 December 2013 the appellant applied to the Federal Circuit Court for judicial review, however the Court dismissed that application on 18 December 2014 (MZZYE v Minister for Immigration & Border Protection & Anor [2014] FCCA 2899). By Notice of Appeal filed 30 December 2014 the appellant appeals to this Court from the judgment of the Federal Circuit Court.

3    The appellant’s circumstances are tragic. He spent his early life living in a war-torn part of Sri Lanka where he was exposed to the difficulties and horrors of the civil war. His uncle was killed by aerial bombing in 2008, his wife died young from leukaemia in 2010, his father died from a stroke in 2011, and he endured a dangerous boat trip to Australia organised by people smugglers in 2012. The appellant is separated from his 12 year old daughter who lives with his mother in Sri Lanka. He has not been permitted to start a life in Australia since arriving in 2012, and he now suffers from severe post-traumatic stress and a major depressive disorder.

4    While the appellant has my deep sympathy I can discern no jurisdictional error in the Tribunal’s decision or appealable error in the judgment of the learned Federal Circuit Court judge. I have made orders dismissing the appeal.

THE TRIBUNAL DECISION

5    The appellant was legally represented before the Tribunal, in a hearing that took place over two days on 8 May and 18 September 2013. On 2 December 2013 the Tribunal published a Statement of Decision and Reasons in which it affirmed the decision not to grant the applicant a Protection (Class XA) visa. I draw upon the Tribunal’s decision in the following paragraphs.

The appellant’s claims

6    The appellant said, and the Tribunal accepted, that he was a citizen of Sri Lanka, of Tamil ethnicity and Hindu religion, originating from a small fishing village in the North Western province of Sri Lanka. He was married in 2002, and had a daughter around one year later. In 2010 his wife passed away, and in 2011 his father passed away. His daughter now lives with his mother in the village from which he originates. He has two brothers and a sister.

7    He claimed that:

(a)    during the civil war in Sri Lanka his uncle was killed in April 2008 by aerial bombing in the Northern province. When he was paying his respects to his uncle’s family in the same month he was detained at the Vavuniya border checkpoint by Sri Lankan authorities and interrogated because they were concerned that he may have been involved with the Liberation Tigers of Tamil Eelam (“LTTE”). After he was released he went straight home because he was fearful that he would be harmed by the authorities because of suspected LTTE involvement;

(b)    later in April 2008 three military personnel came to his house to check his documents and asked him to sign some documents confirming his identity;

(c)    later the same year his friend, who was a transport driver, was shot and killed. He believes he was killed by the Sri Lankan authorities because he was a Tamil and suspected of being connected with the LTTE;

(d)    in January 2012 two policemen came to his house and took him to a police camp, driving him there by Jeep. When he got there he was asked a few questions about what he was up to and asked to provide his identification documents;

(e)    later in January 2012 a policeman came to his house and told him that he had to present to the police camp immediately. He did so but he took the village chairman with him because he was concerned for his personal safety. When he got to the station the police inspector said that he had instructions from a higher authority to investigate him. While the inspector was too busy to see him at the time he said that the appellant would probably be contacted by the authorities in the future; and

(f)    there were many incidents in which Tamil people from his area were investigated, abducted and killed. He said that the Sri Lankan authorities did not provide any assistance against the attacks and if a person made a complaint they may be killed as well.

8    The appellant said he was fearful that the authorities would abduct and kill him because they suspected him of being involved with the LTTE and because he decided to flee Sri Lanka and seek asylum in Australia. He said that he feared persecution if returned to Sri Lanka because he would be targeted:

(a)    because of his Tamil ethnicity;

(b)    because the authorities would suspect he was involved with the LTTE due to his Tamil ethnicity;

(c)    because the authorities would suspect he was involved with the LTTE because of his relationship with his uncle, who he believed was working with the LTTE; and

(d)    because he had been under investigation by the authorities and he had tried to seek asylum in Australia which would give the authorities more reason to be suspicious of him.

9    The appellant also claimed that he owed money to people smugglers for the cost of his boat trip to Australia, and that one of the smugglers has made demands of him by telephone, sent him photographs of his daughter, and made non-specific threats.

The appellant’s mental health

10    The Tribunal member said that he observed the appellant’s difficulties in giving evidence on the first hearing date, and for that reason he invited the appellant to obtain medical evidence as to his mental condition (at [12]). The second day of hearing was delayed because the appellant sought and obtained reports and assessments from a psychiatrist, a general practitioner, and a social worker.

11    I need not recount the medical evidence and it is sufficient to note that the Tribunal accepted that the appellant suffered from a serious mental health condition which affected his ability to coherently provide his story to the Tribunal and to comprehend the hearing. The Tribunal said (at [11]):

One fact that I must take into account in this case is that the applicant has presented medical evidence to the effect that he is suffering from a severe major depressive disorder and severe post-traumatic stress disorder. I accept this evidence and I accept the medical opinion that the applicant has difficulty with remote memory, coherence in narrative and comprehension.

The Tribunal’s findings

12    The Tribunal said that, having considered the medical evidence, and having spoken with the appellant at length over two hearings, it considered that the appellant gave a truthful account of past events save in one critical aspect (at [14]). It accepted a number of the appellant’s claims (at [23]) including that:

(a)    his uncle was killed by aerial bombing in the north of Sri Lanka in April 2008;

(b)    he was detained by Army personnel at a checkpoint when he was travelling in the north of Sri Lanka to pay his respects to his uncle’s family, and that his personal details were recorded at that time;

(c)    shortly afterwards he was visited by police at his home and questioned about his identity and told that he may be investigated in future because he had travelled to the north; and

(d)    a friend of his was killed in 2008 (although the Tribunal did not regard this as relevant to the appellant’s claim for a protection visa).

13    Importantly, the Tribunal did not accept the appellant’s claim that, in January 2012, he was required by the Sri Lankan police to go to a police camp. Accordingly, it found that the appellant had not been questioned or come to the attention of any of the Sri Lankan authorities since 2008 (at [22]).

14    The Tribunal found that the appellant’s evidence as to the January 2012 incident shifted around and that he “fabricated” the claim. The Tribunal said (at [14]):

… I reject, as fabricated, the applicants claims that in January 2012 he was told to report to the police for questioning, or that he was picked up and driven to the police station by police, or that he and/or the local village chairman were questioned, or that the police had instructions from “higher authorities” to investigate him.

15    The Tribunal set out a detailed account of the appellant’s evidence about this incident (at [15]-[16]), and it concluded that his evidence was evasive, that he expanded his claims and that he was unable to provide any detail about the expanded matters (at [17]-[22]). The Tribunal found a number of inconsistencies, which it described as material, between the appellant’s written statement regarding the incident and his oral evidence as to the number and timing of police visits, the modes of transport that the police used and who said what to whom.

16    At the second hearing the Tribunal put to the appellant that he had not disclosed the January 2012 incident at the initial interview by a departmental officer. The Tribunal said that the appellant’s explanation was that, out of fear for his own safety, he had requested the local village chairman to accompany him to the police camp, and he did not want to place the village chairman in danger (at [19]). The Tribunal did not accept this explanation (at [21]) and it found that the 2012 claims were fabricated by the appellant to “freshen up” his claims to fear harm from the Sri Lankan authorities as he had not in fact had any interaction with them since 2008 (at [22]).

17    The Tribunal took into account the appellant’s poor mental health but, in its view, the lack of clarity, cohesion and detail in the appellant’s evidence of that event was not sufficiently explained by his mental condition. The Tribunal said that it reached the conclusion that the appellant fabricated this account of the January 2012 incident on three bases (at [14]), being:

(a)    the fact that the appellant did not make these claims at the earliest opportunity, namely during his entry interview;

(b)    the fact that the appellant omitted to mention the incident to the psychiatrist who prepared a report for the hearing; and

(c)    the Tribunal’s assessment of the appellant’s evidence when he was questioned about the incident.

18    Further, the Tribunal did not accept that the appellant’s uncle was involved in the LTTE, finding that the appellant’s evidence of his uncle’s involvement with the LTTE was “too scant” and based on hearsay to persuade it otherwise (at [33]).

19    The Tribunal said that the appellant also made a claim that his family had been detained in a camp (at 27]):

My father’s younger brother was in the LTTE, his family members were detained in the camp and they collected all my details. The family was detained because a member was in the LTTE. Because I mentioned him they are also suspecting me.

20    Having not accepted that the appellant’s uncle was involved with the LTTE, the Tribunal was not persuaded that the appellant’s family members were detained in a camp because of his uncle’s involvement in the LTTE. Further, the Tribunal said (at [29]) that the camp in question seemed to have been a camp for displaced persons rather than a detention camp. The Tribunal suggested to the appellant (see [30]) that such camps existed because there were many people fleeting the conflict in 2008, that the Sri Lankan authorities would have been closely monitoring the movement of Tamil people towards the conflict area in 2008, and his being stopped and questioned did not mean he was necessarily suspected to be with the LTTE.

21    The Tribunal concluded that the appellant did not have a well-founded fear of persecution for any Convention reason at the hands of the Sri Lankan authorities or otherwise because of past events, his background or family profile in Sri Lanka (at [38]). Nor did the Tribunal accept that was a real risk that the appellant will experience significant harm because of past events, his background or family profile in Sri Lanka if he were to be returned (at [39]).

22    The Tribunal also dealt with what it described as the appellant’s “generic claims” that he feared persecution because of his Tamil race, his membership of social groups comprising Sri Lankan Tamils and Tamils from the North or East of Sri Lanka, his real or imputed political opinion arising from his race, and his membership of the social group of Tamils who fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia (at [45]-[54]).

23    The Tribunal noted that the appellant did not adduce evidence that he had ever engaged in political activity of any type (at [46]), and that the appellant said that he was not involved with the LTTE (at [49]). The Tribunal referred to UNHCR Eligibility Guidelines for assessing the international protection needs of asylum-seekers from Sri Lanka, 21 December 2012 (“UNHCR Guidelines”) (at [25] and [48]-[50]), and noted that they indicated that only the following categories of persons were at risk of harm if returned to Sri Lanka:

(a)    person suspected of certain links with the LTTE;

(b)    certain opposition politicians and political activists;

(c)    certain human rights activists;

(d)    certain witnesses of human rights violations and victims of human rights violations seeking justice;

(e)    women in certain circumstances;

(f)    children in certain circumstances; and

(g)    lesbian, gay, bisexual, transgender and intersex individuals in certain circumstances.

24    When asked by the Tribunal whether he thought he fell into one of those categories, the appellant did not expressly suggest that he did, but claimed that family members had been “detained” because a member was in the LTTE (discussed above at [19]-[20]).

25    The Tribunal’s rejection of the appellant’s claims that his uncle was a member of the LTTE, and that he was required to go to a police camp in January 2012 were significant in the Tribunal’s rejection of his so-called “generic” claims too. Based on the UNHCR Guidelines, the Tribunal found that some additional characteristic beyond Tamil ethnicity alone (such as being suspected of links to the LTTE) was necessary to ground a well-founded fear of persecution, and it concluded that no additional characteristics were present in the appellant’s case. The Tribunal said that the appellant did not have an adverse profile with the Sri Lankan authorities and that he did not face some form of harm at the hands of the Sri Lankan authorities because of his Tamil ethnicity or membership of the particular social groups, his real or imputed political opinion arising from his ethnicity, his place of origin, his former residence in a predominantly Tamil region, or the fact that he was a failed asylum seeker (at [51]).

26    The Tribunal accepted (at [52]) that there might be some ongoing low-level discrimination against Tamils, particularly in the North and East of Sri Lanka, but it did not consider that this gave rise to a real chance that the appellant would experience systemic and discriminatory serious harm or that there was a real risk that he would suffer significant harm if he were returned to Sri Lanka.

27    The Tribunal also dealt with the appellant’s claim that if he was returned to Sri Lanka he faced a risk of harm from people smugglers. The appellant claimed that he had only paid one lakh of the total eight lakh fee charged by people smugglers for transporting him by boat to Christmas Island. The Tribunal accepted that the appellant owed this money, and that the appellant had received non-specific threats from the people smugglers. However, the Tribunal inferred that the people smugglers’ demands would not continue if he returned to Sri Lanka because they would know that his capacity to pay was quite limited, and also because there was no objective evidence to support the claim that people smugglers were causing harm to failed asylum seekers in Sri Lanka who owed them money (at [42]).

28    The Tribunal concluded (at [43]-[44]) that the appellant did not have a well-founded fear of persecution for a Convention reason as a result of owing money to people smugglers, and that there were no substantial grounds for believing that there was a real risk that he would suffer significant harm if returned to Sri Lanka.

29    The Tribunal also separately dealt with the appellant’s claim that he had a well-founded fear of persecution or faced significant harm if returned to Sri Lanka because he had unlawfully departed that country. The Tribunal considered country information regarding the treatment of returnees who departed Sri Lanka illegally and the Tribunal accepted there was a real chance that the appellant would be remanded in custody for one to several days upon his return if he was charged with an offence based on his illegal departure. The Tribunal accepted (at [68] and [79]) that prisons in Sri Lanka were overcrowded, have poor sanitary facilities, limited access to food and lacked basic assistance mechanisms. It stated its view that that he would be then brought before a Magistrate, and released on bail on his own recognizance with a family member as guarantor, and considered that, if the appellant were charged, there was only a remote chance that he would not be granted bail. The Tribunal treated it as likely that the appellant would receive a fine if he was convicted (see [57], [63], [66] and [72]).

30    The Tribunal was satisfied that the Sri Lankan legislation prohibiting departure from an authorised port and without a passport is a law of general application which is applied to all persons who departed Sri Lanka illegally, regardless of their ethnicity. It found that the law is not being applied selectively or in a discriminatory manner for a Convention reason. The Tribunal concluded that the fact that the appellant would return to Sri Lanka as a person who had illegally departed Sri Lanka did not give rise to a well-founded fear of persecution for a Convention reason (at [71]), and that a short period of imprisonment on remand did not constitute a real risk of significant harm such as may entitle the appellant to complementary protection (at [82]).

THE FEDERAL CIRCUIT COURT JUDGMENT

31    On 23 December 2013 the appellant sought judicial review of the Tribunal’s decision by the Federal Circuit Court. The application set out the following grounds:

1.    The tribunal denied me procedural fairness because they didn’t give me a fair hearing.

2.    The tribunal failed to properly consider all of my claims.

3.    The tribunal/Independent Protection Assessor failed by not giving me an opportunity to comment on an issue that was in dispute.

32    The application for judicial review was heard on 24 October 2014. The appellant was not legally represented in the hearing and he did not put on written submissions. On 18 December 2014 the primary judge delivered judgment dismissing the application. The primary judge said that the appellant became increasingly labile during the hearing and that some of his oral submissions were hard to follow (at [52]). However, the judgment shows that his Honour carefully considered the Tribunal decision before reaching the conclusion that there was no jurisdictional error. In his Honour’s view the appeal really amounted to a challenge to the Tribunal’s factual findings in circumstances where those findings were clearly open. As I will explain, I respectfully agree.

The Appeal to THE Federal Court

33    In a Notice of Appeal to this Court on 30 December 2014 the appellant set out the following grounds of appeal:

1.    The Federal Circuit Court erred in not inquiring into all the grounds set out in the application, and restricted itself to consider whether the Tribunal granted procedural fairness.

2.    The Federal Circuit Court said that all the grounds in the application have not been progressed in any meaningful way, but did not expand on them except to depend on the approach adopted by the Tribunal.

3.    The Federal Circuit Court failed to inquire, other than stating that the Tribunal may have come to conclusions by demeanour, on what evidences [sic] the Tribunal decided that the uncle was not involved with the LTTE or that the incident in January 2012 was fabricated. The Tribunal had no evidence to conclude these claims were fabricated and did not give such evidence to comment.

4.    The Federal Circuit Court erred in finding that any slip by the Tribunal in not giving an opportunity to comment on what circumstances led to the January 2012 incidents not being told to the medical advisors, did not deprive an opportunity to fully present the claims.

5.    The Federal Circuit Court failed to consider the impact of the interrogation by Sri Lankan forces of the failed asylum seekers, in combination with the medical condition and severity of the degrading treatment, all of which would lead to recognition of the applicant for complimentary [sic] protection.

34    The appellant was assisted by an interpreter in the hearing before me but he was not legally represented. He put on no written submissions and his oral submissions were quite limited. In my view his lack of legal training, his language difficulties, and his poor mental health meant that he was unable to properly put his case. In all the circumstances it was appropriate that I undertake a careful review of the Tribunal’s decision which was not limited only to the submissions that he advanced.

CONSIDERATION

Ground 1

35    Under this ground of appeal the appellant contended that the Federal Circuit Court erred in not inquiring into all the grounds contained in the application for judicial review, and restricted itself to considering whether the Tribunal granted procedural fairness.

36    It is trite to observe that the Federal Circuit Court had a limited jurisdiction to review the Tribunal’s decision. The Court did not have jurisdiction to rehear the visa application, only to review the decision for jurisdictional error, and it was only required to deal with the grounds advanced.

37    The first allegation in the application to the Federal Circuit Court was that the Tribunal denied the appellant procedural fairness by not according him a fair hearing. The primary judge noted (at [56]) that the appellant informed the Court that this allegation was restricted to four paragraphs of the Tribunal’s decision, namely:

(a)    paragraph 14, in which the Tribunal found that the alleged incident in January 2012 was fabricated;

(b)    paragraph 15, which the appellant said showed that if he did not mention the January 2012 incident in his entry interview, he did notify it in his statutory declaration;

(c)    paragraph 42, in which the Tribunal found that the appellant would not face a threat of harm from people smugglers if he was returned to Sri Lanka; and

(d)    paragraph 71, in which the Tribunal said that the domestic law prohibiting departures from Sri Lanka from an unauthorised port and without a passport was a law of general application which did not have discriminatory intent or impact. His Honour said that the appellant did not take issue with this conclusion, but argued that he would face sustained interrogation and would be required to pay a significant fine because he had departed illegally.

38    The primary judge said, and I respectfully agree, that:

(a)    the Tribunal’s finding that the appellant fabricated the January 2012 incident was clearly open to the Tribunal on the materials, and the matters upon which it relied were cogent (at [59]);

(b)    the appellant’s failure to mention, at the first opportunity, the most important incident underpinning his claimed fear of persecution was a significant omission. In my view it was open to the Tribunal to rely on the fact that the appellant also did not mention this incident when he was providing a detailed history to a psychiatrist;

(c)    to the extent that the Tribunal’s finding turned upon its assessment of the reliability of the appellant’s account, it cannot be seen as plainly untenable or unreasonable;

(d)    notwithstanding the appellant’s mental health difficulties, and bearing in mind the fact that he was represented at both Tribunal hearings, the materials as a whole do not suggest that the appellant was deprived of the hearing to which the Act entitles him;

(e)    the Tribunal’s finding that there was no real risk of harm by people smugglers if the appellant returned to Sri Lanka was open to it (at [62]), and that whilst reasonable minds might differ as to whether a people smuggler is likely to continue to make threats to a returned asylum seeker who is impecunious, the Tribunal’s assessment of that risk was open to it; and

(f)    the Tribunal’s finding that, bearing in mind the appellant’s mental health difficulties, a relatively short period of incarceration for the relatively minor offence of illegal departure did not constitute significant harm, was open to it (at [63]).

39    I can discern no failure by the Tribunal to accord the appellant procedural fairness, and in my view the primary judge gave proper consideration to whether it had done so.

40    The second allegation in the application to the Federal Circuit Court was that the Tribunal failed to properly consider all of the appellant’s claims, and the third allegation in that application was that the Tribunal did not give the appellant an opportunity to comment on an unspecified issue. The thrust of the first ground of appeal before me appears to be that the primary judge did not address these matters.

41    I can see no merit in this ground of appeal. The appellant claimed to fear persecution, or alternatively to face significant harm, if he was returned to Sri Lanka because he would be targeted by Sri Lankan authorities because:

(a)    of his Tamil ethnicity;

(b)    the authorities would suspect he was involved with the LTTE due to his Tamil ethnicity;

(c)    the authorities would suspect he was involved with the LTTE because of his relationship with his uncle, who was involved with the LTTE;

(d)    he had been under investigation by the authorities and he had tried to seek asylum in Australia which would give the authorities more reason to be suspicious of him; and

(e)    he had left Sri Lanka illegally and sought asylum in Australia.

42    As I have set out at [12]-[30] above, the Tribunal considered these claims, and on the basis of the factual findings to which I have referred, it concluded that the appellant did not have a well-founded fear of persecution, and that there was no reasonable basis for concluding that the appellant faced a risk of significant harm, if he were returned to Sri Lanka.

43    Having first set out the appellant’s claims, the primary judge said that the Tribunal correctly characterised those claims (at [27]). Then, his Honour:

(a)    noted that the Tribunal dealt with the appellant’s medical evidence (at [28]);

(b)    set out the evidence regarding the appellant’s claim that he was required to attend a police station in January 2012 and the Tribunal’s rejection of that evidence (at [29]-[32]);

(c)    noted the Tribunal’s findings of fact which (at least partially) supported the appellant’s claims (at [33]);

(d)    summarised the basis for the Tribunal’s finding that the appellant’s uncle was not a LTTE member (at [35]);

(e)    noted the Tribunal’s finding that the appellant would not have an adverse profile in the eyes of Sri Lankan authorities (at [36]);

(f)    noted the Tribunal’s finding that the appellant is not a person to whom Australia owed protection obligations under the Convention (at [37]);

(g)    noted the Tribunal’s acceptance of the appellant’s claim that he owed money to people smugglers and its rejection of the claim that he faced harm from the people smugglers if returned to Sri Lanka (at [38]-[40]);

(h)    noted the Tribunal’s reasons for rejecting the appellant’s claim that he faced persecution or significant harm if returned to Sri Lanka because of his ethnicity, his membership of particular social groups and his imputed political opinion, and said that those reasons seemed sustainable on the materials before the Tribunal (at [41]);

(i)    noted the Tribunal’s consideration of the appellant’s claim that he faced persecution or significant harm if returned to Sri Lanka because he had illegally departed from that country, and the Tribunal’s rejection of those claims (at [42]-[47]): and

(j)    noted the appellant’s oral submissions (at [48]-[54]) (which appear to have largely been a reiteration of factual claims rejected by the Tribunal including the claim in relation to the January 2012 incident, and the claim that he would be harmed by people smugglers if returned to Sri Lanka.)

44    His Honour did not deal with the third allegation in the application for review - that the appellant was not given an opportunity to comment on an unspecified issue that was in dispute. It appears that the primary judge did not do so because the appellant did not specify to his Honour the issue to which he referred. Before me the appellant, again, failed to specify the issue. In those circumstances there can be no tenable claim that the primary judge fell into error.

45    The primary judge set out his view on the application for judicial review in the following terms (at [57]-[58], [61] and [64]):

[57]    The argument that the Tribunal failed to consider the applicant’s claims or failed to give the applicant an opportunity to comment on an issue that was in dispute have [sic] not been particularised in any meaningful way.

[58]     I have set out the passages of the Tribunal’s decision which traverse the matters the applicant raises in some detail. In my view, the findings the Tribunal made show that the Tribunal was well seized of the task it had to undertake, and the findings the Tribunal made in each instance were clearly open to it.

…

[61]    ….the materials as a whole do not suggest that the applicant was deprived of the hearing to which the Act entitles him and, bearing in mind that he was represented by an agent at both hearings, any suggestion that the proceeding was, as it were, rendered nugatory or inoperative cannot be sustained.

…

[64]    In the end, the applicant’s complaints really all amount to challenges to the factual findings made by the Tribunal in circumstances where those findings were clearly open to the Tribunal.

46    In my view the primary judge gave proper consideration to the Tribunal’s performance of its statutory obligation to consider the appellant’s claims, and reached the conclusion that the Tribunal had not miscarried in its task. There is no basis to the contention that the primary judge did not consider all grounds of the application for review.

Ground 2

47    Under this ground the appellant complained that the primary judge said that the grounds in the application for review had not been progressed in any meaningful way, but did not expand on them except to depend on the approach adopted by the Tribunal.

48    I do not agree. In my view the primary judge did expand on the grounds of the application in the sense that his Honour recounted the appellant’s claims, recounted the Tribunal’s reasons for rejecting those claims, assessed whether the Tribunal properly undertook its statutory task, and concluded (at [58]) that “the Tribunal was well seized of the task it had to undertake, and the findings the Tribunal made in each instance were clearly open to it on the materials”. The primary judge was not the decision-maker in the application for a protection visa and his Honour’s task was limited to deciding whether the Tribunal fell into jurisdictional error. To that extent it was unavoidable that the primary judge’s review would “depend on the approach adopted by the Tribunal”.

Ground 3

49    Under this ground the appellant contended that the primary judge failed to inquire, other than stating that the Tribunal may have come to conclusions by demeanour, on what evidence the Tribunal decided that the appellant’s uncle was not involved with the LTTE or that the incident in January 2012 was fabricated. He argued that the Tribunal had no evidence to conclude that those claims were fabricated and did not give such evidence to comment.

50    In my view there is no merit in this ground of appeal.

51    First, the only basis the appellant offered the Tribunal for the conclusion that his uncle was involved in the LTTE was that he had been told this by people in his village and at his work (see the Tribunal’s reasons at [31]-[33]). The Tribunal concluded that this evidence was “too scant” and based on hearsay and it did not accept that the appellant’s uncle had any role with the LTTE. The Tribunal made a qualitative assessment of the appellant’s evidence, rather than making an assessment based on his demeanour. The primary judge noted the Tribunal’s assessment (at [35]). In my view this conclusion was plainly open to the Tribunal.

52    Second, it is plain from the Tribunal’s decision that the Tribunal gave careful consideration to the appellant’s claim that he had been required to attend a police camp in January 2012. As I have already described (at [13]-[16] above) the Tribunal noted that the appellant did not mention this central incident to his claim either in his entry interview or to the psychiatrist who prepared a report regarding his mental health. The Tribunal reached the view that there were material inconsistencies in the appellant’s evidence regarding this incident and that his evidence was evasive. The Tribunal took into account the appellant’s poor mental health but, in a qualitative assessment of the appellant’s evidence, it concluded that the incident was a fabrication.

53    It was the Tribunal’s task to assess the material and make findings of fact for the purpose of its review: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (Flick J) at [28]. In my view the Tribunal’s conclusion was open to it.

54    Third, the appellant’s contention that there was “no evidence” for the Tribunal’s conclusions in respect of these two matters is untenable. As Weinberg J noted in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587; [2005] FCA 1707 at [575] the “no evidence” ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”. The learned authors Aronson and Groves in Judicial Review of Administrative Action (Fifth Edition at 246, [4.600]) suggest that the “no evidence” ground “cuts out when even a skerrick of evidence appears”.

55    The Tribunal’s finding that the appellant fabricated the January 2012 incident and its refusal to accept that the appellant’s uncle was involved in the LTTE involved it weighing the appellant’s evidence on these two matters. That is, there was evidence but the Tribunal found it unpersuasive. The Tribunal was not obliged to search further for proof of the negative.

56    Fourth - if this ground is treated as a complaint that the Tribunal reached unreasonable factual conclusions in respect of these aspects of the appellant’s evidence - then that attack too must fail. The primary judge could have concluded that the Tribunal’s conclusion was unreasonable if the finding was one that “no rational or logical decision-maker could have arrived at on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] (Crennan and Bell JJ). In my view the Tribunal’s findings were open on the material and no such conclusion was open to the Court below.

Ground 4

57    Under this ground of appeal the appellant alleges that the primary judge erred in finding that any slip by the Tribunal in not giving him an opportunity to comment on the circumstances which led to him not informing his medical advisors about the January 2012 incident, did not deprive him of an opportunity to fully present the claims.

58    The primary judge said at [59]:

I note that it is not clear that the Tribunal put to the applicant under s 359A the doubts it had about the applicant’s account arising from his apparent failure to tell his medical advisers about it. The transcript of the proceeding is not before the Court so it is not possible to say one way or the other.

59    First, I note that the primary judge did not conclude that the Tribunal failed to give the appellant the opportunity to comment about doubts that it had concerning the appellant’s failure to tell his medical advisers about the January 2012 incident. His Honour said only that, because the transcript of the hearing was not before the Court, he was unable to assess whether such an opportunity had been given. I can discern no appealable error in his Honour’s approach to this issue.

60    Second, (although the reference by the primary judge to s 359 of the Act is erroneous because in the context of proceedings before the Tribunal the relevant obligation is found in s 424A) the Tribunal’s doubts about the appellant’s evidence were not “information” required to be disclosed to him pursuant to the Act.

61    Section 424A required the Tribunal to disclose to the appellant, in writing, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. That obligation could be satisfied at a hearing if the Tribunal orally described the nature and effect of the information and adjourned the hearing for an appropriate period of time to allow the appellant the opportunity to consider the material: see s 424AA.

62    However, the doubts the Tribunal had about the appellant’s evidence did not constitute “information” for the purpose of ss 424A and 424AA. Those provisions are “concerned with knowledge of a fact or circumstance communicated to, or received by, the Tribunal”: MZKAJ v Minister for Immigration and Multicultural Affairs [2005] FCA 1066 (North J) at [25]. Such “information” cannot include the Tribunal’s assessment and use of the material before it, nor conclusions it itself derived from the material. As the majority said in SZBYR v Minister for Immigration and Citizenship; (2007) 235 ALR 609 at 616; [2007] HCA 26 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ):

… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476‑477] that the word “information”:

“does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence...

(Emphasis added.)

Ground 5

63    Under this ground of appeal the appellant contends that the primary judge failed to consider the impact of the interrogation by Sri Lankan authorities on failed asylum seekers or take into account his medical condition and the degrading treatment that he faced.

64    This ground was not raised before the Federal Circuit Court and there can be no complaint that the primary judge failed to consider this matter when it was not raised.

65    However, taking into account the appellant’s lack of legal representation before me and the Court below, together with his poor mental health, it is appropriate to take a generous approach to this ground. I will treat it as an allegation that the Tribunal fell into error by failing to take into account the appellant’s poor mental health when considering the risk that he would face interrogation if returned to Sri Lanka.

66    I do not accept that the Tribunal fell into error in this way.

67    I say this, first, because the Tribunal gave weight to the UNHCR Guidelines and did not accept that the appellant had a profile putting him at risk of some form of serious or significant harm such as arrest, interrogation or torture (at [50]-[51]). Having reached that conclusion it was unnecessary for the Tribunal to consider if the appellant’s poor mental health might mean that any interrogation might constitute significant harm to the purpose of the Act.

68    Second, there can be no question that the Tribunal was cognisant of the appellant’s poor mental health. His apparent illness and distress at the first hearing was the reason the Tribunal invited him to obtain medical evidence in that regard and the Tribunal accepted the medical evidence as to his poor mental health (at [11]). I note that the Tribunal’s finding:

(a)    in relation to the January 2012 incident was made taking into account the appellant’s poor mental health (at [22]); and

(b)    that incarceration for one or two nights in a Sri Lankan prison would not constitute significant harm was made upon it specifically considering the medical evidence (at [79]).

69    On a fair reading of the Tribunal’s decision, it took the appellant’s poor mental health into account in deciding that he did not face a risk of significant harm if returned to Sri Lanka, including in any questioning by the authorities he was likely to undergo. In my view that conclusion was open to the Tribunal.

CONCLUSION

70    The appeal must be dismissed and the appellant is ordered to pay the first respondent’s costs.

Associate:

Dated:    4 December 2015