FEDERAL COURT OF AUSTRALIA

AKY15 v Minister for Immigration and Border Protection [2016] FCA 232

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made in the Federal Circuit Court of Australia (Federal Circuit Court) on 23 September 2015 dismissing an application for judicial review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal) made on 17 March 2015: AKY15 v Minister for Immigration & Anor [2015] FCCA 2798 (AKY15). The Tribunal affirmed the decision of a delegate of the first respondent (the Minister) not to grant the appellant a Protection (Class XA) visa.

background

2    The appellant is a citizen of Sri Lanka who arrived in Australia on 19 July 2012 as an unauthorised maritime arrival. On 4 December 2012 he lodged an application for a Protection (Class XA) visa (the Visa).

3    In his visa application the appellant claimed to fear persecution on the basis of his political opinion and his membership of a particular social group, failed asylum seekers. In his statutory declaration, annexed to his visa application, the appellant claimed that:

(1)    he provided assistance to his friend, Mr Fonseka, who was running as a candidate for the United Nations Party (UNP) in the July 2011 election;

(2)    while out posting posters, people working for the Sri Lankan Freedom Party (SLFP) would paste their posters over those of the UNP. This caused conflict and the SLFP supporters threatened the appellant and his co-workers;

(3)    the UNP lost the election after which SLFP supporters came to his house looking for him. The appellant said that by that time he was hiding;

(4)    three days after the election the appellant was working at his job at the hospital car park when three or four men who were SLFP supporters grabbed him. He escaped and ran away;

(5)    about a week later, the SLFP supporters came to the appellant’s house at night. The appellant left the house. Those people came back to the appellant’s house about once a week looking for the appellant and threatened the appellant’s family. They continued to do so until the appellant left Sri Lanka in July 2012;

(6)    the appellant said that the group were still looking for him despite his departure;

(7)    having left Sri Lanka, and sought asylum, the appellant fears harm from the Sri Lankan authorities on his return as he left Sri Lanka illegally.

4    On 4 March 2014, a delegate of the Minister refused to grant the appellant the Visa.

5    On 26 March 2014, the appellant applied to the Tribunal for review of the delegate’s decision. On 17 March 2015, the Tribunal affirmed the delegate’s decision not to grant the appellant the Visa.

the Tribunal decision

6    At [6] and [7] of his judgment the primary judge summarised the additional claims made by the appellant in submissions and in a statement provided to the Tribunal prior to the hearing and the additional claims made at the hearing as follows:

6    The applicant made the following additional claims in pre-hearing submissions and in a further statutory declaration received by the Tribunal on 6 March 2015:

a)    his fear of serious harm in Sri Lanka also arose from his membership of the particular social groups “failed asylum seekers” and/or “returnees who have fled Sri Lanka unlawfully”;

b)    he had a higher profile by reason of his political activities. Consequently, the questioning he would undergo at the airport upon his return to Sri Lanka would be framed in the context of his political opinion; and

c)    if the authorities detained him upon his return to Sri Lanka, he would be vulnerable to mistreatment and harm because of his political profile and because of the length of time he had spent in Australia as an asylum seeker.

7    The applicant appeared before the Tribunal on 11 March 2015 at which point he made the following additional claims:

a)    his campaign work on behalf of the UNP candidate began about a month before the election;

b)    his main role during the campaign period involved putting up posters, which put him into conflict with SLFP supporters who were doing the same thing. Although there was never any physical action taken, SLFP supporters would abuse him verbally;

c)    although they did not say anything to identify themselves, he believed that the people who had tried to abduct him at this workplace had been SLFP supporters;

d)     he returned to work the day after that incident and continued to work at the same place until his departure; and

e)    his home village offered him the greatest protection because he knew the area very well and therefore could escape from any attack and avoid being followed.

7    The Tribunal’s key findings have been fairly summarised in the Minister’s submissions as follows:

(1)    the appellant was only a "low level campaigner for the UNP";

(2)    because of his minimal level of political profile and the nature of the claimed threats, the appellant did not face a real chance of serious harm on the basis of his political profile;

(3)    in respect to the appellant's claims to fear persecution on the basis of his political opinion and profile, the Tribunal had "problems accepting his account because it was implausible";

(4)    the Tribunal dismissed the (asserted corroborating) letter of Mr Fonseka, a UNP member, as having no weight because it contained inconsistencies with the appellant’s claims and was not created contemporaneously and also because of the Tribunal’s findings that the appellant's claims were not genuine;

(5)    the appellant's claimed threats and attacks upon him after the 2011 elections were rejected by the Tribunal;

(6)    the appellant's claimed fear of harm on the basis of being a failed asylum seeker who departed from Sri Lanka illegally was rejected on the basis that any harm he may suffer would not amount to serious harm and that, in any event, this would be as a result of a law of general application;

(7)    the appellant's claims pursuant to ss 36(2)(aa) and (2A) - complementary protection - were considered and rejected.

proceedings in the Federal Circuit Court

8    On 13 April 2015 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant raised one ground in his application:

The Tribunal fell into jurisdictional error insofar as it proceeded to decision upon a factual misapprehension.

Particulars

The Tribunal erroneously equated an unfulfilled threat of harm with an absence of harm.

9    At the hearing the appellant provided the Court with a document entitled “Note to Court” by which the appellant sought to raise an additional ground that the Tribunal had been biased.

10    In relation to the pleaded ground of review the primary judge found at [11] of his judgment that the factual misapprehension postulated by the appellant did not exist, that an unfulfilled threat of harm is a threat which has not produced any harm and represents an absence of harm.

11    The primary judge observed that the question for the Tribunal was whether there was a real risk of harm to the appellant in the future were he to return to Sri Lanka. He found that the Tribunal considered all of the matters put by the appellant in support of his claims, that it rejected some as “fabrications” and found in connection with the others that the worst the appellant had suffered was receipt of an “idle threat”. The primary judge observed that the Tribunal had noted that there had been no real harm suffered by the appellant in the past and reasoned, as it was open to it to do, that those facts suggested that future harm was unlikely. That reference was neither illogical nor unreasonable: AKY15 at [12].

12    In relation to the claim made at the hearing that the Tribunal was biased, the primary judge found that because the appellant had adduced no evidence of what occurred at the hearing, any suggestion of an apprehension of bias on the part of the Tribunal at the hearing could not be made out nor did the decision record suggest that any claim of apprehended bias could be made out. Similarly the decision record did not suggest that the Tribunal was in fact biased. Rather the decision record suggested a thorough and detailed consideration of the appellant’s claims by the Tribunal: AKY15 at [14] to [16].

13    Finally, the primary judge noted that the appellant raised matters going to the merits of the application for the Visa which did not disclose a basis to set aside the Tribunal’s decision: AKY15 at [17].

14    The primary judge concluded that no jurisdictional error on the part of the Tribunal had been demonstrated.

the appeal

15    On 8 October 2015 the appellant filed a notice of appeal in which he raises the following grounds of appeal:

1.    Unable to go back to Sri Lanka.

2.    Political issues, not safe for me to go back to Sri Lanka.

16    Under the heading “Orders sought” in his notice of appeal, the appellant includes:

To be given permission to be allowed to stay in Australia.

For reason my own safety, I would like to be given permission to reside and work in Australia.

17    The appellant has not filed any written submissions in support of his appeal. At the hearing when invited to make submissions the appellant informed the Court that he was unable to go back to Sri Lanka and that he was looking for a better decision. The Minister has filed written submissions.

consideration

18    The grounds of appeal raised by the appellant in his notice of appeal seek to cavil with the findings of the Tribunal and, as such, seek impermissible merits review. On that basis, the appeal cannot succeed.

19    The role of this Court on appeal is to consider whether there is any appealable error in the decision of the primary judge. No such error is identified in the notice of appeal nor is any such error discernible from the judgment of the primary judge who considered the appellant’s grounds and found that they did not reveal any jurisdictional error in the decision of the Tribunal.

20    The primary judge found that the Tribunal had considered all of the matters raised before it and rejected some of those matters as fabrications and found that the others rose no higher than receipt by the appellant of an idle threat. As a Full Court of this Court stated in AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [38]:

The claims as made by the Applicant were considered but largely rejected by the Tribunal. The claims were variously rejected by the Tribunal upon the basis that they were (for example) implausible or inconsistent with other information available to the Tribunal….

Each of the findings as made by the Tribunal was a finding open to it upon the materials then available. And, to the extent that those findings were based upon an assessment of the credit of the Applicant, those findings were findings “par excellence” within the domain of the Tribunal alone: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J. Neither the Federal Circuit Court (nor this Court on appeal) has any general role to review the findings of fact made by the Tribunal.

21    That is what occurred here. There is no error in the approach of the primary judge.

22    Although not raised in the notice of appeal, the Minister made submissions in relation to the Tribunal’s findings concerning the appellant’s claims arising from his membership of a particular social group: failed asylum seekers who had departed Sri Lanka illegally. Firstly, the Minister submitted that, as required by Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 (WZAPN), the Tribunal did undertake the requisite qualitative assessment in determing whether a risk of loss of liberty constitutes serious harm. Having considered the Tribunal’s decision, I accept that is so: see [202] to [209] of the Tribunal decision.

23    Secondly, the Minister submits that, regardless of the High Court’s decision in WZAPN, the appellant in this case failed on this ground because the Tribunal found that the laws in Sri Lanka in relation to illegal departures are laws of general application. Thus the feared harm is not visited on the appellant for reason of any Convention based ground. I accept that submission. The facts in this case are different to those which were considered in WZAPN: see AZAEK v Minister for Immigration and Border Protection [2014] FCA 1415 at [26]-[27]. There is no error in the Tribunal’s approach to its consideration of the complementary protection provisions in s 36(2)(aa) of the Act.

conclusion

24    In my view the appeal should be dismissed and the appellant should be ordered to pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    10 March 2016