FEDERAL COURT OF AUSTRALIA

ASK15 v Minister for Immigration and Border Protection [2015] FCA 1459

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The appellant pay the first respondent’s costs, fixed in the amount of $2,800.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from the decision of the Federal Circuit Court to refuse the appellant’s application for constitutional writ relief in respect of the decision of the Refugee Review Tribunal, given on 17 April 2015, to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa: ASK15 v Minister for Immigration and Border Protection [2015] FCCA 2224.

Background

2    The appellant is a citizen of Sri Lanka who is of Tamil ethnicity. He left Indonesia by boat on 7 August 2012 and arrived in Australia on 9 August 2012. He applied for a protection visa on 24 December 2012.

3    The appellant made a number of claims for protection. He claimed to fear harm because the Sri Lankan Criminal Investigation Department (CID) was investigating the involvement of his family, in particular, one of his brothers, with the Liberation of Tigers of Tamil Eelam, or LTTE as it was known, during the Sri Lankan civil war. He also claimed to fear harm because of his Tamil ethnicity, his political opinion based on his actual or imputed membership of the LTTE arising from his brother’s involvement or suspected involvement and his brother’s disappearance in Sri Lanka in 2006, together with the disappearance of his younger brother. He claimed, also, to fear persecution were he to be returned to Sri Lanka now, because of his membership of one of two particular social groups, namely, the relatives of a member of the LTTE and returned failed asylum seekers of Tamil ethnicity. The appellant also claimed that Australia’s complementary protection obligations to him were engaged under s 36(2)(aa) of the Migration Act 1958 (Cth).

4    The appellant described an incident in his entry interview in claiming protection that he said caused him to leave Sri Lanka. He claimed that persons, whom he described as “grease men”, had visited his village in August 2011, leading to a fight with other villagers that did not involve him. He claimed that this incident caused the army to come and round up all the men in the whole village. The appellant claimed that, subsequently, he escaped from the roundup by jumping from an army truck and returning to the village. He said that a few days later the CID came looking for him but he was not at home.

5    The appellant was interviewed by the delegate, who rejected his application on 14 October 2013. During the whole of the review process, the appellant was represented by the Refugee Advice and Casework Service who prepared detailed factual and legal submissions for the consideration of both the delegate and the Tribunal, and the appellant was represented during the hearing in the Tribunal by a lawyer and migration agent employed by the Service. He repeated his claim about the grease men incident in his statutory declaration that the Service included in his application for a protection visa. He claimed in the statutory declaration that he travelled to India to see the temples for a month later in August 2011 and that the CID had let him go “if I ensured I would return”.

6    The delegate was not satisfied that the appellant should be granted a protection visa. He applied to the Tribunal to review that decision.

The Tribunal’s decision

7    The Tribunal made a number of adverse findings about the appellant’s credibility in relation to his claims for protection. However, the Tribunal accepted the following matters namely:

    The appellant had lived in the northern province of Sri Lanka, where he grew up. His father was a fisherman. He had an elder and younger brother, a married sister and an unmarried sister. The family lived in a refugee camp in an area that was controlled by the LTTE until 1995 when the army again took control of that area, and the family relocated to another refugee camp where they stayed until March 2005, again, in an area under the control of the LTTE.

    During the ceasefire in 2005, the appellant returned to his home village and remained there until 2006 when hostilities resumed, and the family returned to the LTTE-controlled area of the refugee camp whence they had come. From March 2008 until August 2009, he was in another refugee camp in an area controlled by the army, together with his mother, sister and younger brother. They had travelled there without the LTTE’s knowledge while the army was advancing. The younger brother escaped soon after arriving in the camp and travelled to Australia via Indonesia and has been granted a protection visa here.

    In August 2009, the appellant returned to his home village and was joined by his father and older sister in 2010, after they had been released from another camp.

    The appellant completed year 10 at school and worked as a fisherman for 12 years from 2000 to June 2012 on a family-owned boat with his father and brother-in-law. He resumed the fishing activity in the area around his home when he returned there in August 2009.

    The appellant married in May 2011. In August 2011, he travelled to Colombo to get a passport. He then flew to India on a pilgrimage on that passport with his younger sister after obtaining the permission of the CID to make that travel. (He also claimed that his parents had provided a surety to enable the travel to occur, but the Tribunal rejected that factual claim. The appellant had told the delegate that he told the CID that he was travelling to India in August 2011 and that he had had no issues entering and re-entering Sri Lankan airports and had not been subjected to questioning in relation to that trip.)

    On 30 June 2012, the appellant travelled to Indonesia by plane on his own passport and came to Australia from there.

    In August 2013, the appellant’s wife and younger sister travelled to Indonesia. His father had continued fishing until he left Sri Lanka and flew to Indonesia in May 2014. The appellant’s father, wife and younger sister were all living in Indonesia while his mother lived with her married daughter and her family in Sri Lanka.

8    The appellant made other controversial claims. He claimed that he feared that, notwithstanding the end of the civil war, he would be persecuted were he to be returned to or remain in Sri Lanka. He claimed that during the war his older brother had disappeared. He said that he had not seen his older brother after 2006. But, he told the Tribunal that when he came here, his younger brother told him that their older brother was then living in Indonesia, contrary to the appellant’s stated belief that the older brother was missing in Sri Lanka. He claimed to the Tribunal that he and his younger brother had had a falling-out because, until the appellant’s encounter with him in Australia in late 2012, the younger brother had never mentioned to his family meeting the supposedly missing older brother in Indonesia in 2009.

9    The appellant gave other evidence about his claims. The Tribunal found his whole account implausible, particularly, since it involved the Tribunal having to accept, which it did not, that the younger brother would not have informed the family, once he arrived in Australia, that the missing elder brother was safe in Indonesia. The Tribunal also made other adverse credibility findings in relation to the appellant’s evidence concerning his elder brother and the family’s knowledge or lack of knowledge about him. The appellant told the Tribunal that when he went to Indonesia he had to pay bribes through an agent to facilitate his departure. As I have noted above, the Tribunal did not accept that the appellant’s parents provided a surety for him to travel to India and that he made the claim that they had done so for the first time at the hearing.

10    Following the Tribunal’s hearing on 31 March 2015, the appellant’s representative made a further written submission dated 14 April 2015. The submission contended that the CID had granted the appellant permission to leave Sri Lanka on an exceptional basis in 2011 to attend a religious festival in Chennai, India, and that his parents had signed a guarantee with the CID. The submission asserted that the guarantee provided that his parents would be detained if the appellant did not return and that this, along with the fact that his wife had remained in India, was a sufficient guarantee for his return.

11    The Tribunal gave detailed reasons for its finding that it did not accept the appellant’s claim to have left Sri Lanka in late June 2012 because he feared serious or significant harm. It found that this claim was inconsistent with the appellant’s return from his pilgrimage to India in August 2011. The Tribunal reasoned as follows. First, the appellant had left Sri Lanka legally from Colombo airport on both occasions, and had returned there on the first. Secondly, as noted above, the Tribunal did not accept that his parents provided any surety for his return from India in 2011. Thirdly, it said that during the hearing, it had pressed the appellant several times to state if anything else that he had not previously told it in his oral evidence, had happened to him in Sri Lanka before he left in June 2012.

12    The Tribunal said that only after a short break in the hearing, did the appellant mention the “grease men” incident to it. The Tribunal found that it did not accept the appellant’s claim about the “grease men” incident, because not only had the appellant not mentioned this earlier in the hearing, but his account of this allegedly frightening occasion was inconsistent both with the Sri Lankan authorities permitting him to leave for India a month later and his return to Sri Lanka despite his asserted fear.

13    The Tribunal found that, because the appellant had been allowed to travel to India in August 2011 without difficulty, this fact was inconsistent with his claim that he was at risk of persecution by the authorities in Sri Lanka for any of the reasons that he had mentioned and was also inconsistent with his allegation that he paid a bribe to leave in 2012.

14    During the course of the Tribunal hearing, the appellant asserted that he had been subjected to a terrifying interrogation by the military or CID shortly before he left in 2012, a claim that he had never mentioned previously. He then raised other allegations of being more regularly interrogated which the Tribunal found inconsistent with his prior statements and evidence.

15    Ultimately, the Tribunal found that it did not accept that the appellant’s claims to fear harm based on his history in Sri Lanka were genuine. It found the appellant had been allowed to resume fishing in his home village in August 2009 until the time he left Sri Lanka and that he was allowed to leave Sri Lanka legally on two occasions. He did not accept that he genuinely feared serious or significant harm in Sri Lanka after his interrogation following the cessation of hostilities in August 2009.

16    The Tribunal rejected the appellant’s claim that there was no one in Sri Lanka to care for him and look after him and that he had nowhere to stay were he to be returned there, because his older sister and husband were still there. It found that his other family members, being his father, his wife and sister, had all left Sri Lanka legally and it did not accept that there was any real chance or real risk that he would suffer serious harm were he to be returned to Sri Lanka including to his home area. It specifically found that his evidence about claims for protection were not credible on all bases on which he put them.

17    Accordingly, the tribunal found that it was not satisfied there was a real chance that the appellant would suffer serious harm in the reasonably foreseeable future for a Convention reason, were he to return to Sri Lanka, and that he did not have a well-founded fear of persecution. It also found that there was no basis on which the appellant could claim complementary protection for the same reasons, namely, that it did not believe his accounts of circumstances in which he might suffer harm or feared that outcome.

The proceedings in the Federal Circuit Court

18    The appellant’s grounds for relief before the trial judge asserted various matters. He asserted that the Tribunal had made an error in deciding that he would not suffer cruel or inhumane treatment or punishment if he were gaoled for up to two weeks on his return to Sri Lanka, that it had accepted that gaols were subject to overcrowding and poor conditions and that he had had scarring that could draw adverse attention of the authorities. The Tribunal never mentioned any such considerations in its reasons, no doubt because the appellant had not made any such claim.

19    However, the application below also claimed that:

    the Tribunal had erred by not complying with either ss 424A or 424AA of the Migration Act 1958 (Cth) because it did not raise or put to him “in writing part or parts of the adverse decision for [him] to comment in writing”;

    he intended to listen to the audio recording of the Tribunal’s hearing to find out whether it had made any other errors;

    he wished to seek legal assistance from the Federal Circuit Court’s legal assistance scheme.

20    The trial judge correctly found that the Tribunal had not, as I have mentioned, made any finding or engaged in any discussion about cruel or inhumane treatment or punishment that might occur upon the appellant’s return to Sri Lanka of the kind he asserted in the first ground of his application below. His Honour found that the Tribunal had made no error in its reasoning on that point. His Honour so found that no claim was ever made by the appellant that he had scarring. He found that the Tribunal did not mention this matter in its reasons because it was never raised.

21    His Honour also correctly rejected the assertion that the Tribunal had failed to comply with its obligations under ss 424A or 424AA, particularly as these alleged failures were unparticularised. Moreover, I would observe, the appellant’s solicitor had made a detailed, 13-page submission on 14 April 2015 following the Tribunal’s hearing dealing with matters that had been raised during the hearing. Those submissions, as one might expect from a trained lawyer skilled in the field of migration matters, focused on a number of issues that the Tribunal’s questions appeared to have suggested it might require submissions on or, where it needed to be satisfied about, the appellant’s claims.

22    His Honour rejected the fourth ground as a repetition and the fifth ground as not identifying any matter giving rise to jurisdictional error. I agree, for the reasons that his Honour gave, that no arguable basis was set out in the grounds before his Honour on which the Tribunal’s decision could be set aside.

23    His Honour then noted that the appellant had submitted orally that he could not return home and that there was no one who would be able to get him out of gaol, were he detained on his return. The appellant repeated the same submission to me today. His Honour found that these matters did not give rise to jurisdictional error. I agree. In any event, on the findings of the Tribunal, his older sister and her husband would be able to provide surety for him were he to be returned.

24    The appellant told his Honour that he had spoken to a named barrister, for whose assistance the appellant sought an adjournment. His Honour found that there was no evidence as to what steps, if any, the appellant had taken from the time of filing his application, about three months before the hearing below, until a week beforehand, about legal representation. The trial judge noted that the appellant had not foreshadowed that he would seek an adjournment until the actual time of the hearing, despite orders for the provision of submissions and evidence that the Court had made two months prior to that time. His Honour concluded that there was no basis on which to grant an adjournment and refused to do so. He dismissed the proceedings.

This appeal

25    The notice of appeal in this Court asserted that his Honour erred by:

    not acting in accordance with an unspecified rule of the Federal Circuit Court Rules 2001 (Cth) by “not taking the Applicant’s application at its highest for the purposes of dismissing the proceedings”; and

    dismissing the proceedings in circumstances where he was unrepresented.

26    The appellant argued before me that his appeal should be allowed. He said that his wife and father were in Indonesia, he had suffered a lot in the war, that he would be gaoled were he to be returned home and there was no one to provide bail for him. He said that he had told the Tribunal what had really happened to him and why he had to flee here for protection. He said that he had tried to hire a lawyer to represent him but that had not worked out properly, and sought an adjournment once again to obtain legal advice. He said that he had approached a lawyer who had promised to take over his case but the lawyer had not done so. He said that he had disclosed all the information to the Tribunal and that he had paid a huge amount of money in bribes to be able to leave Sri Lanka legally.

Consideration

27    None of the appellant’s arguments are matters that the Court can take into account on judicial review of decisions of the Tribunal. Moreover, because this is an appeal, it was necessary for the appellant to demonstrate that the trial judge made some error that would justify the grant of relief. Such relief might have been available if his Honour had failed to see a jurisdictional error in what the Tribunal had done. However, the matters on which the appellant sought to rely were factual matters going to the merits of the Tribunal’s decision and its reasoning process. He did not identify any error, let alone jurisdictional error, in the procedure of the Tribunal or any departure from a legal or statutory requirement that the Tribunal was obliged to follow. In effect, the appellant was seeking merits review in both the Court below and this Court, which is not available.

28    There is no basis for the appellant’s argument that a rule in the Federal Circuit Court Rules required his application to be taken at its highest. His Honour dealt with the proceedings as a final hearing. The onus was on the appellant to satisfy his Honour that the Tribunal had made a jurisdictional error warranting the grant of constitutional writ relief. The appellant failed to satisfy his Honour. In my opinion, the trial judge was correct to dismiss the application below for the reasons that his Honour gave.

29    Nor is it possible for this Court to uphold the appeal simply because the appellant appeared in the Court below without legal representation. His Honour gave careful consideration to the appellant’s case, as have I. I have had regard also to the fact that he is unrepresented, English is not his first language and he is not versed in the legal technicalities of the law concerning jurisdictional error. The appellant is nonetheless obliged to put his case to the Court as best he can, and he has done so.

30    I have reviewed the whole of the appeal papers carefully to determine whether there was anything that might arguably be said to be a jurisdictional error. I am unable to determine anything that might fall within that category. The Minister’s lawyer also has not been able to identify any such matter.

31    The Minister has sought a fixed amount of costs of $2,800 in respect of the appeal. I am satisfied from the material in the affidavit of Sumer Dayal, on which the Minister relied, that the Minister has incurred solicitor/client costs substantially above that sum and that item 15(d) of Sch 3 of the Federal Court Rules 2011 (Cth) provides that a party in a migration appeal finalised after a final hearing is able to claim, in a short form bill of costs, the sum of $6,439. Having regard to the affidavit and those matters, I am of opinion that the sum claimed is reasonable.

Conclusion

32    For these reasons, I am of opinion that the appeal must be dismissed and that the appellant should pay the Minister’s costs fixed in the sum of $2,800.

Associate:

Dated:    18 December 2015