FEDERAL COURT OF AUSTRALIA

AHI15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 513

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the respondent Minister.

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

REASONS FOR JUDGMENT

JESSUP J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia given on 3 September 2015, in which an application for judicial review of a decision of the Refugee Review Tribunal made on 5 March 2015 was dismissed. In that decision, the Tribunal had affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellant a protection visa under the provisions of the Migration Act 1958 (Cth) (“the Act”).

2    On 6 May 2016, I dismissed the appeal with costs. These are my reasons for having done so.

3    On 22 February 2016, a Registrar of the court made directions requiring the appellant to file and serve a written outline of submissions no later than 10 business days before the hearing of the appeal. That was not done. Further, when the appellant represented himself at the hearing of the appeal on 6 May 2016, he made no submission that could have been of any relevance to the appeal which he sought to prosecute, or to the function of the Federal Circuit Court in an application for remedies of the kind referred to in s 75(v) of The Constitution. The appellant’s brief submissions were concerned only with circumstances presently existing in Sri Lanka, and with why he ought not be obliged to return there.

4    Were it not for the existence of a reasoned judgment of the court on 10 February 2016 extending the time for the lodgement of the present appeal, I would have had no cause to expand my reasons beyond those already set out above: AHI15 v Minister for Immigration and Border Protection [2016] FCA 64. In deference to that judgment, however, I shall deal with the two dimensions of the appellant’s case that were recognised by his Honour as providing at least an arguable basis for the appellant’s success.

5    One of the appellant’s grounds of appeal was the following:

The RRT and/or the Federal Circuit Court of Australia did not conduct the hearing in a fair and just manner and/or according to law.

Taking a liberal view of the matter, this ground may be understood as seeking to agitate the correctness of the primary Judge’s disposition of a ground in the Amended Originating Application expressed as follows:

The Minister erred in law in not following the proper procedures in determination of the application made by the Applicant.

Particulars (inter alia)

a.    The Tribunal used one alleged phrase of the Applicant (written on his behalf by the solicitor in the written report) namely “kept a distance” to nullify all the statements of the Applicant that appeared to be at odds to this phrase. This was repeated by the Tribunal. The Tribunal failed to ask the Applicant what he meant with the phrase, as this phrase can have several meanings, one of which could be construed as kept at distance as far as the authorities are concerned, not to mean completely broken up with the political party. This could have clarified the position.

In its judgment of 10 February 2016, the court took the view that this ground amounted to a complaint that the appellant had been denied procedural fairness in the sense that he was not given the opportunity to clarify the meaning of the metaphor used by his solicitor, “kept a distance”.

6    In part, the appellant’s factual case in the Tribunal was that he had been subjected to temporary incarceration, and to assaults, on account of his association with a Sri Lankan political organisation known as the Tamil National Alliance (“TNA”). In a statement which he made in support of his visa application on 23 October 2012, the appellant said:

There were four or five military officers who were in a room at the camp, who told me that I had been assisting the TNA party, and that I should not help the party from now on. I started to say that I had not done anything wrong, and they began to hit me. After around 45 minutes, they took my shirt off and tied my hands behind me [sic] back. Following this, they left me in a corner of the room. Two officers came back about 5 hours and untied me. Then they threatened me, and told me that if I continued to support the party they would shoot me or otherwise they would torture me. After this, the two officers let me go and I kept my distance from the party.

7    In a pre-hearing submission to the Tribunal made on 11 February 2015 on behalf of the appellant, his solicitor said:

•    He was taken to a room where military officers told him not to assist the TNA, but to support the TMVP and then beat him. After this, they kept him tied-up in the room for about four or five hours. The officers then threatened to kill him if he continued with his support of the TNA, before letting him go.

•    After this [the appellant] kept his distance from the TNA and lived in a constant state of fear.

8    The appellant’s statements that he had kept his distance from the TNA were referred to several times in the Tribunal’s decision of 5 March 2015. Those occasions were the following:

The tribunal was concerned about the applicant’s evidence in a number of respects. Firstly, his evidence about when he ceased his TNA support work was inconsistent with his written statement, changed throughout the hearing and was evasive. For instance, both his statements refer to keeping his distance from the TNA after he was beaten by the army in March 2010. But it was inconsistent with his evidence at hearing, when he said he continued to work for the TNA, but reduced it.

…

The tribunal does not accept the agent’s submission that there was no inconsistency (or broadly consistent) between “keeping his distance from the party” and reducing the level of public activities or contact or that any inconsistency was due to difficulties in communication, rather than evasiveness.

…

Further the tribunal considers his hearing account was that while he reduced his work, he still campaigned, went door to door and put up posters, all of which are publicly noticeable activities, which is inconsistent with keeping ones [sic] distance from the party. The only change according to his evidence at hearing was he did not attend meetings. The tribunal does not accept the agent [sic] submissions the applicant meant or was no longer engaged in any public work for the party as door knocking and putting up posters is public work. Further, the agent’s submission that the applicant continued to have contact with Mr Seenithamby, one of the candidates, is inconsistent with someone who was keeping their distance from the party. The tribunal finds his evidence at hearing about his level of contact with the party and election work was not consistent with his statement that he kept his distance from the party.

…

The letter was also inconsistent with his written statement claim that he kept his distance from the party.

9    Although, as I have said, not articulated by the appellant in any submission made on appeal, the point seems to be that it was a denial of procedural fairness for the Tribunal to have made use of the “kept his distance” metaphor as a point of inconsistency with what appeared to have been a deal of evidence by the appellant himself that he continued to have some degree of involvement with the TNA, however slight. Before using the metaphor in this way, it might be said that the Tribunal ought to have warned the appellant that it would do so.

10    There is no transcript of the proceeding in the Tribunal. Neither has the appellant provided an affidavit, or otherwise gone into evidence in terms which would be sufficient to sustain a finding of fact that he had had no opportunity to deal with the potential for this metaphor to generate points of inconsistency with much of the evidence which he gave in the Tribunal. As it happens, in evidence before the Federal Circuit Court, and again in this court, is a copy of a letter dated 19 February 2015 from the appellant’s solicitor to the Tribunal. The solicitor described the contents of this letter as “post-hearing submissions”. She said that they addressed “certain issues raised in the Tribunal hearing”.

11    One of the headings in the letter was “Concerns put to [the appellant] at the hearing”. Six “key credibility concerns raised by the Tribunal during the hearing” were referred to in that letter, the first of which was the following:

A perceived inconsistency as to whether [the appellant] reduced the work which he was doing for Mr Seenithamby’s election campaign or stopped working entirely following his beating by a faction of the Sri Lankan army;

I set out below the whole text of the letter insofar as it dealt with this question:

a.)    A perceived inconsistency as to whether [the appellant] reduced the work which he was doing for Mr Seenithamby’s election campaign or stopped working entirely following his beating by a faction of the Sri Lankan army

2.2    The Tribunal put to [the appellant] that there was an inconsistency between the Statement and his oral evidence at the Hearing of the work which he did for Mr Seenithamby’s election campaign following his beating by a faction of the Sri Lankan army in March 2010. In particular, the Tribunal referred to the inclusion in the Statement of the following sentence: “After [the beating] … I kept my distance from the party”. The Tribunal also stated that it had difficulty with [the appellant’s] oral evidence as there appeared to be a lack of clarity as to whether he reduced the work he was doing for Mr Seenithamby or stopped working for him entirely.

2.3    We submit that there is no inconsistency between the Statement and [the appellant’s] oral evidence at the Hearing, and that any lack of clarity as to whether [the appellant] reduced his work or stopped working altogether is more likely to have arisen from difficulties in communication than evasiveness on [the appellant’s] part. We submit that the phrase "kept [his] distance" is inherently imprecise, and does not in terms convey a complete lack of contact with the party or Mr Seenithamby, as opposed to a reduced level of contact. In relation to [the appellant’s] responses to questioning at the Hearing, we are instructed that what [the appellant] intended to convey was that following the beating, he reduced his work for the party to the point where he had almost stopped that work. In particular, whilst [the appellant] had been campaigning, door-knocking and putting up posters prior to the beating, he stopped all such public activities on behalf of the party after that incident. Although [the appellant] continued to have contact with Mr Seenithamby, he was effectively no longer doing any public work for the party.

2.4    The Tribunal questioned [the appellant] in relation to the difference between the work he was doing prior to the beating and what he was doing afterwards. In particular, the Tribunal asked: "Did you still go campaigning and door knocking, putting up notices?", to which [the appellant] responded, “Yes, campaigning door to door as well as putting posters". The Tribunal then put to [the appellant] that it sounded like he was still doing things that were public and not keeping his distance from the party, to which he responded, "Yes". However, in response to the initial question as to the difference between what he has doing before and after the beating, [the appellant] replied, “Before I was going to meetings, putting notices publically, but after the problem I reduced the work [to that] which is publicly not noticeable.

2.5    We submit that it is likely that [the appellant] misunderstood the first two questions referred to in [2.4] above. In particular, we note that [the appellant] responded that he did not understand the Tribunal's question when it was put to him that it did not sound like he did reduce his work for the party. We invite the Tribunal to consider the possible barriers to communication and to be mindful of the difficulties of assessing oral evidence provided through an interpreter. Further, the educational, social and cultural background of a person may affect the manner in which a person provides his or her evidence. When an unambiguous question was put to him as to the difference between the work he undertook before and after the beating, [the appellant] clearly explained that he had reduced his work to that which was publically not noticeable. We submit this is the true position and the answer which the Tribunal ought to accept. On this basis, we submit that [the appellant’s] oral evidence was broadly consistent with the Statement as to the level of work he undertook for the party following the beating.

[Footnotes omitted]

12    The passage set out above, which was referred to in a footnote to the written submissions upon which the Minister relied in the Federal Circuit Court, removes entirely the factual basis for a contention that the appellant was not fairly warned of the use to which the Tribunal might put the “kept his distance” metaphor in the context of the credibility findings which it was minded to make. In the circumstances, to the extent that the appellant’s grounds of appeal might be understood as alleging a denial of procedural fairness on the part of the Tribunal, that allegation must be rejected on the facts.

13    Another of the appellant’s grounds of appeal is expressed as follows:

The RRT and/or the Federal Circuit Court of Australia took into account irrelevant matters, facts and evidence and failed to take into account relevant facts, matters and evidence.

This appears to have been an invocation of the following grounds contained in the appellant’s Amended Originating Application.

The Tribunal erred in law by taking into consideration information not relevant to the applicants’ [sic] claim:

Particulars:

a.    The fact the [a]pplicant was able to travel freely before the time when the applicant became associated with political party has been used to indicate that the [a]pplicant was never in a position of persecution and therefore all his subsequent statements lack credibility. The same applied for his ability to get a passport. The Tribunal failed to take into account that persecution occurred when the [a]pplicant is identified, which only happens in the area the [a]pplicant is active in politics. [The] [a]ddition of several unrelated events were used to reduce the credibility of the [a]pplicant.

The point here seems to be that, in circumstances where it was the appellant’s case that he commenced an active involvement with the TNA only in 2010, for the Tribunal to have taken into account the fact that, before that year, he was able to travel freely, and to obtain a passport, was to give consideration to an irrelevancy.

14    Locating the passage that might be said to have involved this irrelevant consideration in the Tribunal’s reasons was not, either for counsel representing the Minister or for the court, a particularly easy matter. Again taking a liberal view of the matter, however, it appears that this ground of appeal may have been referring to the following paragraph in the Tribunal’s decision:

The applicant travelled to Qatar for work between 2003 and 2008. He also obtained a new passport in 2012. The agent submitted he could travel as his problems did not arise until 2010 and the passport office did not have any links with paramilitary groups. Further he maintained a low profile in Colombo to avoid any problems. The agent referred to Freedom from Torture report of 2012 that those who were perceived LTTE were able to leave safely and now faced a risk on return. The agent submitted the freedom of travel in 2008 was not indicative of whether he faced a real risk of harm if he returned now. However, the fact that he was not detained in 2008 or 2009 suggests that he was not of interest to authorities as LTTE as country information is that LTTE were rounded up for questioning, arrest, detention and sent to rehabilitation centres.

[Footnotes omitted]

That passage was in the section of the decision which gave consideration to the appellant’s credibility. At this point, the Tribunal had not yet turned to the question whether Australia owed protection obligations to the appellant under the Refugee Convention.

15    In the following section of its reasons, where that question was addressed, the following paragraph appeared under the heading “LTTE”:

Fourthly, the Upper Tribunal country information indicates that the “Sri Lankan authorities approach is based on sophisticated intelligence” and authorities collect and maintain sophisticated intelligence on former LTTE members and supporters. In the tribunal’s view, if the applicant was perceived as being an LTTE supporter, that would have resulted in his arrest in or prior to 2009 and certainly before his departure from the country. The tribunal acknowledges the submission that he was not supporting TNA until 2010, however, if he were of interest or perceived as LTTE even after 2010, he also would have been detained. The tribunal has found the applicant was not arrested or detained but that he continued to live and work on the farm in the area. Even if he had been stopped by army on the street as claimed (but not accepted), the fact that he was let go further reinforces the tribunal view that he was not of interest or perceived to be LTTE.

[Footnotes omitted]

16    The starting point for a consideration of this ground is that the relevance of specific factual matters to an assertion that Australia owes obligations to a visa applicant under the Refugee Convention will always be substantially informed by the scope of the evidence advanced by the applicant himself or herself in support of his or her claim. In an intensely factual environment such as the present one, it would be a considerable step for a court to hold that a member of the expert tribunal had made jurisdictional error by giving consideration to some fact because it lay outside the legally permitted arena of investigation.

17    In his original statement in support of this application for a visa, the appellant said that he lived his childhood in a constant state of fear, because he and others would see members of different paramilitary groups walking around with weapons every few days. The district where he lived was under military control, and different LTTE groups would “plan attacks” on his group. When that happened, according to the appellant, “the military would constantly harass any Tamils in our area and question us about what had happened, and whether we knew anything.” The appellant said that, in 2003, he left Sri Lanka to work in Qatar, returning five years later.

18    In the pre-hearing submissions sent to the Tribunal on behalf of the appellant on 11 February 2015, his solicitor said that the appellant “lived in fear from paramilitary groups and the Sri Lankan army who would question Tamils about LTTE attacks” during the period that he was growing up. This was, of course, a paraphrase of the statement made by the appellant in support of his visa application.

19    In the letter from the appellant’s solicitor of 19 February 2015 to which I have referred, another of the “key credibility concerns” was the following:

f)    How [the appellant] was able to obtain a passport and leave Sri Lanka without adverse attention from the authorities.

Addressing that “concern” in the text of the letter, the solicitor said:

f)    How [the appellant] was able to obtain a passport and leave Sri Lanka without adverse attention from the authorities.

2.15    The Tribunal put to [the appellant] that he had no trouble from the authorities when obtaining a passport or going to the airport in 2008 upon his return from Qatar. Further to the matters stated in the Pre-Hearing Submissions in this regard, we note that the Freedom from Torture report has stated that:

Sri Lankan Tamils who in the past had an actual or perceived association at any level with the LTTE but were able to leave Sri Lanka safely now face risk of torture on return. The cases demonstrate that the fact the individuals did not suffer adverse consequences because of this association in the past does not necessarily have a bearing on risk on return now.

2.16    We submit that, as this report indicates, the fact that [the appellant] was previously able to obtain travel documents and pass through the airport in 2008 is not indicative of whether he would face a real risk of harm if he were returned to Sri Lanka now.

[Footnotes omitted]

20    At no stage was it suggested on behalf of the appellant that the Tribunal should not even be interested in his ability to move about freely before 2010, including by way of international travel which required the issue of a passport. Furthermore the use to which the Tribunal deployed that circumstance in its decision should not be misunderstood: it did so to provide a baseline, as it were, by reference to which it could infer that the appellant was of no interest to the authorities in 2008 and 2009. The Tribunal seemed to regard it as relevant that, at that stage at least, he was not perceived to have any association with the LTTE. As I have said, this was in the credibility section of the Tribunal’s decision, and it was, in my view, well within the competence of the Tribunal to start from a position in which, before he was actively involved with the TNA in 2010, the appellant was unlikely to have been a person of interest to the authorities on account of such an association.

21    Turning to the other relevant paragraph in the Tribunal’s decision, set out in para 15 above, this lay in so much of that decision as was dealing with the question whether Australia had protection obligations to the appellant under the Refugee Convention. Under the heading “LTTE”, the opening paragraph was as follows:

The tribunal does not accept the applicant will be imputed with LTTE or antigovernment sentiment or perceived as LTTE because of his Tamil ethnicity or supporting TNA.

22    That is to say, the Tribunal was concerned not only with the question of the appellant’s support of the TNA, but also with the extent to which he might have been “imputed with LTTE or anti-government sentiment or perceived as LTTE because of his Tamil ethnicity”. If the Tribunal thought it important to approach that aspect of the matter without any strict temporal cut off in 2010, I cannot understand how it could be contended that it was jurisdictionally incompetent for it to have done so. Because of the nature of the evidentiary case which the appellant ran, I would not find that the broader question of LTTE association, unlimited in point of time, was necessarily irrelevant to the Tribunal’s consideration of the appellant’s claims. It may not have been a circumstance of great significance, but so to observe is not to invoke any consideration which is justiciable in a proceeding of the present kind.

23    For the reasons I have given, I dismissed the appeal.

Associate:

Dated:    12 May 2016