FEDERAL COURT OF AUSTRALIA

ADO15 v Minister for Immigration and Border Protection [2016] FCA 766

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

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing to grant the appellant Constitutional writ relief in respect of the decision of the Refugee Review Tribunal given on 27 February 2015 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa: ADO15 v Minister for Immigration [2016] FCCA 88.

Background

2    The appellant is a citizen of Sri Lanka, of Tamil ethnicity and Hindu religion. He was represented in the proceedings before the Tribunal by a migration agent and by counsel in the proceedings before the trial judge. However, the appellant has represented himself in this appeal.

3    The appellant entered Australia as an illegal maritime arrival on 7 July 2012. On 10 September 2012 the Minister permitted the appellant to seek a protection visa by exercising his powers under s 46A(2) of the Migration Act 1958 (Cth) to lift the s 46A(1) bar and on 15 November 2012 the appellant applied for a protection visa. The sole ground of appeal to this Court was that the trial judge “committed jurisdictional error in dismissing proceedings” [sic]. I will treat that ground as, in effect, an appeal against his Honour’s rejection of the extensive grounds of appeal argued by the appellant’s counsel before the trial judge. That enables me to confine the description of the history of the proceedings in the Tribunal to the essential matters necessary to consider the correctness of his Honour’s reasons for refusing relief to the appellant.

4    The Tribunal accepted that in 1986 the appellant’s brother had been killed by a Sri Lankan air force helicopter firing on Tamil civilians it considered to be hostile to the government. At that time the appellant and his family lived in an area associated with the Liberation Tigers of Tamil Eelam or LTTE. The Tribunal also accepted that it was plausible that another brother of the appellant had been taken prisoner by the Sri Lankan Army with 14 other Tamils who were suspected of being members of the LTTE and that, since then, this brother had not been seen or heard of by the appellant or his family and could be presumed to have died. The Tribunal did not consider that an association with either brother would give rise to any serious consideration that the appellant himself was a sympathiser with the LTTE. It considered both brothers’ circumstances cumulatively with the appellant’s other claims in arriving at its final conclusion.

5    The Tribunal found plausible the appellant’s claim that his land had been confiscated by the Sri Lankan Army. It rejected his claim that he was unable to subsist in Sri Lanka, after it had regard to the fact that he had been able to pay for his unauthorised travel to Australia and to his claims to have owned a shop in his town and that his wife owned land there on which the appellant had cattle.

6    The Tribunal accepted that the appellant had been detained in 2005 and mistreated by the Sri Lankan Army for 15 days when it captured his home area from LTTE forces. It also accepted that he and his family had been detained in a government camp for a further eight months, as he had claimed, and that in 2006 he had moved to the home of a local politician with the Tamil National Alliance (TNA), a political party that supported the LTTE’s cause. The Tribunal also accepted the appellant’s claim he had departed Sri Lanka illegally in 2009 but had been captured by the Sri Lankan Navy and jailed for 56 days in two prisons. However, it rejected his associated claim that he had been mistreated severely during that detention.

7    The appellant’s principal claims to the Tribunal that became the focus of the application before the trial judge were as follows, namely, his claims that:

    he had obtained a profile by reason of his activities in support of the TNA that would give rise to him having a real chance of being persecuted for his political opinion were he returned to Sri Lanka, or of suffering significant harm for that reason;

    he had been a member of a particular social group of wealthy Tamils who would be targeted were he to return;

    by reason of his 2009 detention, there was a real chance that he would suffer serious or significant harm were he now returned to Sri Lanka, having again departed that country illegally;

    by reason of his having travelled to Australia there was a real chance that he would be perceived of being an overseas supporter of the LTTE: and

    he would suffer serious or significant harm as a failed asylum seeker were he returned to Sri Lanka now.

8    In essence, the Tribunal rejected each of those claims because it was not satisfied that there was a real chance that he had a profile that created a risk, or by reason of his circumstances he was otherwise at risk, such that he would suffer serious or significant harm for any of the reasons he claimed, were he returned to Sri Lanka.

9    The Tribunal accepted the appellant’s account of his activities and those of others who were in a similar position to him, while residing at the TNA politician’s home, of doing menial chores including, cleaning, maintenance, gardening, putting up stages, preparing foods, handing out pamphlets, driving, shopping and the like to support the TNA, as well as helping with election campaigns and other political events. The Tribunal was satisfied that the appellant’s involvement with the TNA, based on his own account, was menial and low profile. Accordingly, it was not satisfied that those activities would give rise to the appellant coming to adverse attention of anyone in Sri Lanka. The Tribunal found that, had the appellant been of any real interest to anyone by reason of his activities in support of the TNA, as the appellant described them, he or his family would have been subject to more harassment than he claimed.

10    The Tribunal rejected the appellant’s claims that he had been in hiding or had taken any other steps to protect himself when he lived with the politician, or that he had been subject to any death or any other threats. It also was not satisfied of his claims that the Sri Lankan authorities had shown any interest in the appellant after he had left for Australia or that he would be imputed as being an overseas supporter of the LTTE were he to return.

11    It concluded that a Tamil male who had never been seriously suspected of being engaged with the LTTE, who had never been engaged with the LTTE, and none of whose family members had been held in any rehabilitation or any other camp at the end of the Sri Lankan civil war, would come to the adverse attention of Sri Lankan authorities or anyone else by reason of any of the appellant’s claims that the Tribunal had accepted in its reasons. It concluded that he did not have any real chance of suffering serious or significant harm by reason of being a Tamil from the north or east of Sri Lanka on his return there.

12    The Tribunal also rejected the appellant’s claim that there was a particular social group of wealthy Tamils, within the meaning of that concept in the Refugees Convention. Moreover, based on country information, it was not satisfied that wealthy Tamils, or persons who had gone overseas and or who had remitted moneys to their home when overseas, had a real chance of being targeted in the east of Sri Lanka, where the appellant lived.

13    Next, the Tribunal found that, based on country information, it was not satisfied that an essential and significant reason for any prosecution that the appellant might face for having breached Sri Lanka’s departure laws would be for a Refugees Convention reason for which there was a real chance that he would be persecuted were he to return. It did not accept that he had any material profile in Sri Lanka, even though he had previously attempted in 2009 to depart that country illegally. It found that the appellant had breached his claimed bail condition when released from his 2009 sentence, because he had left Sri Lanka within five years of that release. It was not satisfied that, despite his having previously been detained after departing Sri Lanka illegally, his profile would be substantially changed were he to now return and it was not satisfied that, given the length of time since the cessation of hostilities and the new focus of the Sri Lankan authorities, the appellant would be subject now to a custodial sentence were he to return to Sri Lanka.

14    It found that although conditions in Sri Lankan prisons were poor, it was not satisfied there was a real chance that the appellant would be subject to a custodial sentence in Sri Lanka, including for having left that country unlawfully.

15    The Tribunal also considered whether the appellant fell within any risk profiles for returning Sri Lankans described in the Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka that the United Nations High Commissioner for Refugees (UNHCR) had issued on 21 December 2012, which included:

4.    [f]ormer LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE.

16    Based on its findings that the appellant would not be attributed with any material profile, the Tribunal was not satisfied that he could fall within any of the classes of risk profile identified by the UNHCR, including the fourth. It found that when he arrived in Sri Lanka, like most persons after questioning to establish his identity and circumstances that would last for a few hours, the appellant would be granted bail immediately by a magistrate on his personal recognisance. It therefore found that he did not have any real chance of being subject to serious harm by reason of being an illegal departee were he to return.

17    The Tribunal also rejected the appellant’s claim that he would be perceived as a failed asylum seeker and thus have a real chance of being persecuted were he returned to Sri Lanka. It also considered the UNHCR’s risk profiles in that regard and found that country information supported its conclusion. After considering country information, it was not satisfied that the Sri Lankan authorities would consider the appellant to be a threat, because of its finding that he lacked any material profile or his political or other convictions, howsoever described. It found that he had no real chance of being persecuted should he be returned to Sri Lanka as a failed asylum seeker.

18    The Tribunal also considered the appellant’s claims cumulatively. It concluded that it was not satisfied that he was a person in respect of whom Australia had protection obligations under the Refugees Convention for the purposes of s 36(2)(a) or (b) of the Migration Act. It also rejected the appellant’s claims to protection under the complementary protection ground in s 36(2)(aa) because it was satisfied that, based on its earlier findings, he did not have a real risk of suffering significant harm for any of the reasons that he claimed or any other reason were he to be returned to Sri Lanka.

The proceedings before the trial judge

19    The trial judge considered all of the appellant’s counsel’s arguments in a careful reserved judgment. His Honour dealt with each ground in turn, as will I. The first ground (grounds 1 and 1A) contended that the Tribunal had asked the wrong question, failed to consider the attributes of the particular social group claimed by the appellant, and failed to afford procedural fairness, based on the appellant’s claim to have been at risk of persecution or significant harm because he would be perceived as wealthy. As I have explained, the Tribunal did consider those matters and rejected them. His Honour explained in detail why he had come to the view that these grounds lacked substance. I agree with his Honour’s reasons.

20    Ground 2 asserted that the Tribunal had committed a jurisdictional error by asking the wrong question in assessing the risk of harm to the appellant by reason of his activities with, or in support of, the TNA. Again, as I have explained, the Tribunal gave its reasoning process for concluding that, having accepted the appellant’s account of his activities, he did not have, or generate, a real chance of being perceived to have, a profile that would expose him to a real chance of serious or significant harm by reason of those activities that associated him with the TNA. I also agree with his Honour’s reasons for rejecting that ground.

21    The trial judge subdivided ground three into four grounds that he called grounds 3A, 3B, 3C and 3D. First, the appellant complained (ground 3A) that the Tribunal had failed to comply with Ministerial Direction 56 issued under s 499 of the Act. That promulgated what are known as the PAM3 guidelines for the assessment of complementary protection claims. The Tribunal stated at [6] of its decision record that it was required to take account of the PAM3 guidelines and any country information prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes to the extent that they were relevant to the decision under consideration. His Honour found that there was nothing in the Tribunal’s reasons to suggest it did not take account of any part of the PAM3 guidelines and that the ground was hopeless. He refused leave to rely on it. I agree.

22    Secondly, the appellant asserted (ground 3B) that the Tribunal did not base its findings on any evidence that the appellant would be held on remand for a few hours. However, as his Honour pointed out, the Tribunal’s decision record set out at [43] country information from DFAT that persons arrested on return to Sri Lanka could remain in police custody at the airport for up to 24 hours and, if a magistrate were not available before this time, for example, because of a weekend or public holiday, those persons were held at nearby Negombo prison until they could be brought before a court. His Honour said that the fact that the Tribunal set out this material demonstrated that there was nothing in the ground and refused leave to rely on it. I agree.

23    Thirdly, the appellant contended (ground 3C) that he had been denied procedural fairness on the issue of the brevity of any such period of detention because that question had not been properly put to him. His Honour found that the appellant had not put any transcript of the hearing before the Tribunal into evidence. He found that the appellant was aware of this issue from the delegate’s decision. The delegate had said that on return to Sri Lanka a person in the appellant’s position could be held on remand for between a few days to a fortnight while awaiting bail. Accordingly, the trial judge held that this ground was hopeless and refused leave to rely on it. I agree: see also SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 at 165 [42]-[43] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

24    Fourthly, his Honour granted leave to rely on ground 3D, being that the Tribunal had misconstrued the meaning of “significant harm” within the meaning of s 36(2A) of the Act, but rejected it. He followed SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 as to the construction of the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in ss 5(1) and 36(2A) of the Act, which held that any harm had to be intentionally inflicted in order to amount to significant harm for the purposes of s 36(2)(aa). He noted that the Tribunal had reasoned, at [71] of its decision record, that based on country information, the harm to which prisoners held on remand may be subject appeared to be entirely random and that mere negligence or lack of resources, which appeared to be the cause of the present poor conditions in which the appellant might be detained were he to return to Sri Lanka, did not suffice to amount to cruel or inhuman treatment or punishment or torture under Australian law. That construction of the Act has now been upheld in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 per Kenny and Nicholas JJ at [54]-[55], [59] and per Buchanan J at [97]. Accordingly, his Honour was correct to reject ground 3D.

25    His Honour rejected the appellant’s assertion (ground 4) that the Tribunal had committed a jurisdictional error in failing to take into account the consequence of his previous illegal departure and his profile. As I have explained, the Tribunal took those matters into account and the ground was spurious. I agree with his Honour’s reasons for rejecting it.

26    The appellant also asserted (ground 5) that the Tribunal had failed to assess, in effect, the impact of his previous involvement with the LTTE were he to be returned to Sri Lanka, including that it had failed to consider whether he fell within the UNHCR’s risk profile 4. However, the Tribunal did consider that matter. If found that the appellant, having regard to his claims, would not have a risk profile of any relevant association with the LTTE were he returned to Sri Lanka. His Honour rejected that ground for reasons with which I agree.

This appeal

27    Before me, the appellant said that he was not able to explain legal matters, but that he felt he had not been given a fair opportunity to put forward his case. He said that he would have problems in Sri Lanka, were he returned, because of his involvement with the TNA and the perception that he was connected to the LTTE. He said that he needed another chance to explain his position to the Tribunal. He said that there were matters that he could disclose now to the Department or Tribunal about his involvement with the LTTE that he had not disclosed before because of his fear that he might expose himself to harm were he to do so.

28    I reject those arguments. In advance of the Tribunal hearing, the appellant had put forward a detailed statement of his claims that had been prepared with the assistance of his solicitor migration agent. There is no evidence whatsoever to support his assertions today, to the extent they were not the subject of grounds taken by his counsel, when he was represented before his Honour, even were I prepared to allow the appellant now, for the first time, to raise them. The appellant had a full opportunity to put his case, both before the Tribunal and his Honour. Even if the appellant now has further information that he wishes to put before the Tribunal, he failed to raise whatever those matters are earlier when he had the opportunity to do so. The Tribunal did not make any error in relation to those new assertions because, for whatever reason, the appellant did not raise them with it. His failure to do so is not capable of being characterised as a jurisdictional error of the Tribunal or error by the trial judge.

Conclusion

29    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    29 June 2016