FEDERAL COURT OF AUSTRALIA

BAF15 v Minister for Immigration and Border Protection [2016] FCA 958

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to file an amended notice of appeal in the form that was handed to the Court at the hearing of the appeal.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent's costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The appellant is a citizen of Sri Lanka who has sought asylum in Australia. His attempts to secure a protection visa from the respondent, the Minister for Immigration and Border Protection, have thus far been unsuccessful. The Minister's delegate refused the appellant's visa application in July 2013. The Refugee Review Tribunal subsequently rejected the appellant's review application and affirmed the delegate's decision. The appellant then challenged the Tribunal's decision in judicial review proceedings commenced in the Federal Circuit Court of Australia. The primary judge dismissed the appellant's application with costs. The appellant now appeals to this Court from the judgment of the Circuit Court.

THE APPELLANT'S PROTECTION VISA CLAIMS

2    The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa is that the appellant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

3    Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person meets the complementary protection criterion if the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

4    The remaining subsections of s 36 and Subdivision AL of Part 2 Division 3 of the Act contain additional provisions about protection visas. Other parts of the Act, such as Part 1, include provisions that define or explain various expressions used in s 36(2)(a) and (aa), such as significant harm and persecution.

5    In the applicant’s entry interview, protection visa application, interview with the Minister's delegate, and in his evidence before the Tribunal, the appellant put forward various claims in support of his case that he had a well-founded fear of persecution and that there was a real risk that he would suffer significant harm if he was required to return to Sri Lanka. Given the narrow terms of the grounds of appeal ultimately pursued by the appellant, it is unnecessary to recite his claims and evidence in any great detail. In very short terms, the appellant claimed that he feared persecution in Sri Lanka on account of his perceived political opinion, his Tamil ethnicity and his membership of a social group comprising failed asylum seekers and persons who had left Sri Lanka illegally.

6    The appellant claimed that before he left Sri Lanka he had been suspected of being connected with the political group called the Liberation Tigers Tamil Eelam by the Sri Lankan authorities, including the army and the police. This came about in part because he had lived in six different places. He claimed to have been mistreated by the authorities for that reason in 2007, and that for a lengthy period thereafter that he had been required to report to the authorities for questioning about Tamil Tiger activities in the region where he had lived. He was required to attend a victory ceremony in 2012 and was forced to undertake certain tasks for the army.

7    The appellant also claimed that he was the victim of extortion by the members of the army or other persons in apparent positions of authority in Sri Lanka. He said that those persons attended the hardware business where he worked and demanded that he give them goods.

8    The appellant's claimed fear of persecution on the basis of his ethnicity was in many respects related to his contention that the Sri Lankan authorities were likely to suspect that he was associated with the Tamil Tigers, and with his claim that he would be persecuted as a failed asylum seeker if returned to Sri Lanka. He asserted that if he returned to Sri Lanka he would be suspected of being connected with the Tamil Tigers because he was Tamil. He also maintained that as a Tamil who was suspected of having links with the Tamil Tigers he was more likely to suffer persecution or serious harm as a failed asylum seeker and as someone who departed Sri Lanka illegally. He claimed that failed asylum seekers and persons who departed Sri Lanka illegally are likely to be mistreated upon their return.

THE TRIBUNAL PROCEEDINGS AND DECISION

9    In July 2013 the appellant applied to the Tribunal for a review of the delegate's adverse decision. His application was heard in November 2014. The appellant was represented by a migration agent during the course of his Tribunal application. The agent provided documents and detailed pre- and post-hearing written submissions to the Tribunal. The appellant also gave oral evidence before the Tribunal.

10    The Tribunal accepted some of the appellant's evidence and claims. It accepted that he was mistreated by the Sri Lankan authorities in 2007 and was required to report to the authorities regarding Tamil Tiger activities in the area he lived until 2009. The Tribunal also accepted that he might have been questioned by the authorities on some occasions after the reporting requirements ceased and that he had also been required to undertake tasks for the army. Importantly, however, the Tribunal found that the appellant was not himself suspected by the Sri Lankan authorities of being connected with the Tamil Tigers after about 2011 or at the time he left Sri Lanka in 2012. The Tribunal accordingly was not satisfied that the appellant had a well-founded fear of persecution, or that there was a real chance that he would suffer any harm in Sri Lanka, on account of his perceived political opinions.

11    As for the appellant's other claims, the Tribunal considered that the appellant's evidence concerning extortion by the army was vague and contradictory. It was not satisfied on the evidence that he had in fact been the victim of extortion. The Tribunal was accordingly not satisfied that the appellant had a well-founded fear or persecution, or that there was a risk that he would suffer serious harm in Sri Lanka on the basis of the appellant's claims that he had been the victim of extortion claims in the past.

12    The Tribunal was also not satisfied on the basis of the evidence and information before it that the appellant had a well-founded fear of persecution, or was at risk of serious harm, on account of his being a Tamil, or a failed asylum seeker or person who had left Sri Lanka illegally. The Tribunal's findings to this effect were based in part on its finding that the appellant would not be suspected of having connections with the Tamil Tigers, and in part on the basis of “country information” concerning the treatment of failed asylum seekers, including Tamils, upon their return to Sri Lanka. The Tribunal found that the country information did not indicate that individuals were at risk of persecution or serious harm in Sri Lanka on account of their Tamil ethnicity alone, even if they were returned to Sri Lanka as failed asylum seekers or persons who had departed Sri Lanka illegally. They were only at risk if they were suspected of being involved with the Tamil Tigers or in other anti-government activities.

13    The end result of the Tribunal's findings concerning the appellant's claims and evidence was that it was not satisfied that the appellant met either the Refugees Convention criterion or the complementary protection criterion for a protection visa.

THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT

14    The appellant sought judicial review of the Tribunal's decision in the Circuit Court pursuant to s 476 of the Act. He sought an order quashing the Tribunal's decision and a writ of mandamus directing the Tribunal to determine the appeal according to law.

15    In the Circuit Court the appellant relied on two broad challenges to the Tribunal's decision and reasons. The first ground of challenge related to the Tribunal's reliance on country information concerning Sri Lanka. The appellant claimed that the Tribunal failed to comply with s 424A and s 425 of the Act, or otherwise denied him procedural fairness, because it failed to put the country information to him for comment. The primary judge rejected that contention. His Honour found that the country information fell within s 424A(3)(a) of the Act. The Tribunal was accordingly not required to give the appellant particulars of that information. Nor was there any denial of procedural fairness in the way the Tribunal dealt with the country information.

16    The appellant also appears to have contended that the Tribunal did not properly or fully consider some parts of a particular report authored by the Department of Foreign Affairs and Trade (DFAT). That argument was based on the fact that the Tribunal had not expressly referred to some passages from that report in its reasons. The primary judge found that it was unnecessary for the Tribunal to refer in its reasons to all of the evidence that was before it. The Tribunal had plainly had regard to the DFAT report relied on by the appellant, though the weight to be given to particular parts of the report was entirely a matter for the Tribunal. The primary judge rejected any suggestion that the Tribunal had been selective in its treatment of the country information and concluded that there was no error arising from the way the Tribunal considered and took that information into account.

17    The appellant's second ground of challenge to the Tribunal's decision was directed at the Tribunal's findings concerning the period of time that failed asylum seekers or persons who had departed illegally might have to spend on remand upon their return. The primary judge found that this ground amounted to an impermissible challenge to findings of fact by the Tribunal. His Honour found that these factual findings were open on the material before the Tribunal. There was accordingly no error, let alone jurisdictional error, arising from these findings.

THE APPEAL

18    The appellant was initially not legally represented in relation to his appeal. His notice of appeal appeared to raise one specific error on the part of the primary judge. That error related to the primary judge's rejection of the appellant's arguments concerning the Tribunal's alleged breach of s 424A or s 425 and alleged denial of procedural fairness arising from the fact that the Tribunal did not put certain country information to him. Beyond that ground, the notice of appeal simply asserted in general terms that the primary judge erred in failing to find error on the part of the Tribunal.

19    Shortly prior to the hearing the appellant retained counsel. Counsel retained by the appellant filed written submissions that raised two alleged errors by the Tribunal, neither of which were agitated in the Circuit Court. Leave was sought to file an amended notice of appeal that raised the two new grounds. The written submissions also stated that counsel had not identified any error on the part of primary judge in dealing with the arguments that the appellant had raised in the Circuit Court. This amounted to a clear concession that the ground specified in the appellant's filed notice of appeal had no merit.

20    The two new grounds of appeal may be shortly stated.

21    The appellant’s proposed first ground was that the Tribunal misconstrued or misapplied the expression “well-founded fear of persecution” as it applies to s 36(2)(a) of the Migration Act. This error was said to be found in paragraphs 75 and 76 of the Tribunal’s reasons. In paragraph 75, the Tribunal referred to a report which noted that “Tamil civilians who were not members of the LTTE, including those who may have provided a lower level of support to the LTTE, may be monitored by Sri Lanka[n] authorities but are at a low risk of being detained or prosecuted”. In paragraph 76, the Tribunal stated that “[a]s the Tribunal is not satisfied that the [appellant] was of interest to the Sri Lankan authorities when he left and the country information does not suggest that he would be at risk if he returns, the Tribunal finds that the [appellant] does not have a real chance of serious harm on the basis of his claims regarding past experiences in Sri Lanka”. The Tribunal therefore concluded that the appellant did not have a well-founded fear of persecution in Sri Lanka on that basis.

22    The appellant contended that a low risk of detention or prosecution was sufficient to constitute a real chance of persecution. He relied on passages from the judgments of Mason CJ and McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The thrust of the appellant’s argument was that that the Tribunal’s reasons indicated that it had effectively found that a low risk of harm could not amount to a real chance of persecution. He submitted that the Tribunal had therefore misconstrued or misapplied the test for a well-founded fear of persecution.

23    The appellant's proposed second ground of appeal was that the Tribunal failed to deal with an aspect of the appellant's claim that the Sri Lankan authorities were likely to suspect that he was connected with the Tamil Tigers. This argument was based on the fact that that the Tribunal had accepted that in 2007 the authorities had suspected that the appellant had Tamil Tiger connections based on the fact that he had lived in several different places. While the Tribunal also found that at the time the appellant left Sri Lanka in 2012 the Sri Lankan authorities no longer suspected him of having Tamil Tiger connections, the appellant contended that the Tribunal was nevertheless required to consider the appellant's claim that his “profile” of having frequently changed addresses prior to 2007 meant that there remained a possibility that upon return he would be suspected of having links to the Tamil Tigers.

24    The Minister did not consent to the raising of the two new grounds of appeal.

Should leave be granted to raise the new appeal grounds?

25    The Court has a discretion to allow a party to advance a ground of appeal not advanced in the court from which the appeal is brought where it is in the interests of justice to do so: Iyer v Minister for Immigration and Multicultural Affairs (2001) 2001 64 ALD 9. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, the Full Court said (at 598-599 [46]-[48]) that leave to argue a ground not raised before the primary judge should only be granted “if it is expedient in the interests of justice to do so” and that the Court may grant leave if the point has merit and there is no real prejudice to the respondent.

26    In determining whether leave to argue new grounds should be granted, the Court may have regard to a number of considerations. They include: whether the new grounds have reasonable prospects of success; whether there is an adequate explanation for why the arguments were not raised in the court below; whether there is any prejudice to the respondent; whether any prejudice to the respondent can be fairly cured; what is at stake for the appellant if the new grounds cannot be raised; and the efficient use of the Court's resources: see generally NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 82-86 [154]-[175] (Madgwick J, Conti J agreeing at 96 [230]). It is not sufficient for the appellant, at least in appeals from the Circuit Court relating to protection visa refusals, merely to rely on the fact that there is or may be no prejudice to the respondent. That is because in such cases the Minister will almost never be able to point to any real prejudice of the conventional kind. The undesirable result would be that this Court would become a de facto primary court contrary to the statutory scheme in relation to judicial review of decisions of the Tribunal in respect of protection visas: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [24]; SZWCO v Minister for Immigration & Border Protection [2016] FCA 51 at [29]-[36] (and the cases there cited).

27    The only explanation advanced by the appellant for not raising the proposed grounds of appeal before the Circuit Court is that he was effectively not legally represented until retaining his present counsel shortly prior to the appeal. There was unchallenged evidence, in the form of a letter from the appellant that suggested that the appellant had endeavoured to retain a solicitor, Mr Sentil Rajan Sinnarajah. That turned out not to be a fruitful exercise. Mr Sinnarajah was not available to appear for the appellant in the Circuit Court. Whilst Mr Sinnaraajah apparently prepared the notice of appeal, he was apparently also unavailable to appear at the hearing of the appeal. Whilst it was perhaps unfortunate that the appellant was unable to obtain any useful legal representation until he retained his present counsel, the mere fact that the appellant was unrepresented in the Circuit Court is not a particularly satisfactory explanation for not raising the two new arguments in the Circuit Court.

28    There are, however, some considerations that militate towards the grant of leave. Obviously there is much at stake for the appellant. There is no real prejudice to the respondent and no additional judicial resources will be expended. Those considerations do not compel the grant of leave, but they are nonetheless relevant. Ultimately the critical consideration in the circumstances is whether the new points have any merit.

29    In all the circumstances, particularly given the fact that the new grounds of appeal are narrow, were fully argued and may be dealt with shortly, the expedient course is to grant leave to amend the notice of appeal to include the two new grounds.

Did the Tribunal misconstrue the test for a “well-founded fear of persecution”?

30    The appellant's argument that the Tribunal misconstrued the test for a well-founded fear of persecution is based on a misreading, or at least an unfair or incorrect interpretation, of the Tribunal's reasons. The Tribunal did not, as the appellant contended, find that there was a low risk that the appellant would be persecuted if returned to Sri Lanka by reason of either his Tamil ethnicity or any perceived association with the Tamil Tigers. Nor did the Tribunal find that a low risk of persecution would not amount to a real chance of persecution, or could not give rise to a well-founded fear of persecution.

31    It may readily be accepted that a person may have a well-founded fear of persecution even though the possibility of the persecution is low, in the sense of being well-below 50 per cent. There must, however, be a “real chance” of persecution, which generally means that the possibility of persecution must be one that is not remote, insubstantial or far-fetched. A summary of the relevant law to this effect was included in an annexure to the Tribunal's reasons. These propositions flow from the judgments of Mason CJ and McHugh J in Chan. It should be noted, however, that in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) the High Court cautioned against using the “real chance” test as a substitute for the Convention term “well-founded fear of persecution”.

32    A fair reading of the Tribunal's reasons indicates that the Tribunal was not satisfied that there was a real chance that the appellant would be persecuted for any of the reasons that he had advanced. There is no indication that in so concluding the Tribunal used the expression “real chance” as meaning anything other than a possibility that was not remote, insubstantial or far-fetched.

33    The appellant's argument in support of ground 1 is based on the Tribunal's apparent acceptance of a statement from a report which, on one reading, appeared to acknowledge that there was a low risk that Tamil civilians who were not members of the Tamil Tigers, including those who may have provided a lower level of support to the Tamil Tigers, might be detained or prosecuted. It is difficult to fully appreciate the full import of that statement because the report was not included in the appeal book and does not appear to have been before the primary judge. That is no doubt because there was no issue about this report or any conclusions that could be drawn from it in the court below.

34    In any event, the appellant submitted that it followed from the Tribunal's acceptance of the country information that the Tribunal must have found that there was a low risk that the appellant, who was a Tamil, would be detained or prosecuted and therefore persecuted. The appellant argued that a low risk is sufficient to constitute a real chance, the Tribunal should have found that the appellant had a well-founded fear of persecution. In the appellant’s submission, the only explanation for the Tribunal's finding to the contrary must be that the Tribunal did not consider that a low risk was sufficient to constitute a real chance and that the Tribunal must therefore have misconstrued either the real chance test, or the expression well-founded fear of persecution.

35    There are a number of difficulties with this argument. In particular, the argument relies on reading the Tribunal's reference to the relevant statement from the country report in isolation and out of context. To the extent that the report referred to Tamil civilians who provided low level support to the Tamil Tigers, there was no suggestion that the appellant provided low level support to the Tamil Tigers. The Tribunal also rejected the appellant's contention that the Sri Lankan authorities would suspect him of having been connected with the Tamil Tigers. There is nothing to indicate that the Tribunal accepted that there was any probability, let alone a low probability, that the appellant would be detained or prosecuted on the basis that he had provided low level support to the Tamil Tigers.

36    To the extent that the relevant statement from the report referred to Tamil civilians generally, the Tribunal dealt with the appellant's claimed fear of persecution on the basis of his Tamil ethnicity in a separate part of its reasons. At paragraphs 80 to 83 of its reasons, the Tribunal referred to other country information that indicated that “the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict”. The Tribunal accepted that the country information did indicate that “problems remain” for persons suspected of association with the Tamil Tigers, but repeated its finding that it was not satisfied that the appellant had, or would be suspected of having, connections with the Tamil Tigers. Likewise, at paragraph 90 of its reasons, the Tribunal referred to country information that indicated that Tamil ethnicity was not a “risk factor”. The country information did not indicate that Tamil asylum seekers face a real chance of serious harm on the basis of their ethnicity alone.

37    Those parts of the Tribunal's reasons suggest that the Tribunal considered that the country information that was before it indicated that Tamil ethnicity alone was not a basis for finding that a person had a well-founded fear of persecution if returned to Sri Lanka. While the Tribunal did not expressly reconcile that finding with its acceptance of the information that suggested that there may have been a low risk of Tamils being detained or prosecuted, a fair reading of the reasons as a whole indicates that on the whole of the material before it, the Tribunal was not satisfied that a person of Tamil ethnicity would have a well-founded fear of persecution in Sri Lanka on that basis alone. The Tribunal was accordingly not satisfied that there was a real chance that the appellant would face harm on the basis of his Tamil ethnicity if he were to return to Sri Lanka.

38    A fair reading of the Tribunal's reasons as a whole does not support the appellant's argument that the Tribunal misconstrued or misapplied the meaning of a “well-founded fear of persecution”. There is no suggestion in the Tribunal's reasoning that it accepted that there was any probability, let alone a low probability that the appellant would be detained or prosecuted on the basis of his Tamil ethnicity alone. Indeed, the Tribunal's reasons, read fairly, suggest that it found that there was no risk or probability that the appellant would be persecuted on the basis of his ethnicity alone, or if there was any such risk, it was no more than a remote, insubstantial or far-fetched possibility. There was therefore no “real chance” that the appellant would be persecuted and his fears were accordingly not well-founded.

Did the Tribunal fail to consider an aspect of the appellant's claims?

39    There is, with respect, even less merit in the appellant's second ground of appeal. It again relies on a parsing and nit-picking analysis of the Tribunal's reasons which involved reading one small part of the Tribunal's reasons in isolation and out of context, and then comparing it with another part of the Tribunal's reasons.

40    The Tribunal did accept that the fact that the appellant had lived at a number of different places between 1995 and 2002 may have given the Sri Lankan authorities reason to suspect that the appellant had Tamil Tiger links back in 2007 when he was first questioned. Equally, however, the Tribunal found, in effect, that those suspicions were subsequently allayed. From at least 2010 until 2012, when the appellant left Sri Lanka, there was nothing to suggest that the Sri Lankan authorities suspected that the appellant had any connections to the Tamil Tigers. Indeed, the Tribunal effectively found that the Sri Lankan authorities appeared to accept that he had no such connections.

41    The appellant's argument depends on the acceptance of two propositions: first, that the appellant claimed that, because he lived in various places between 1995 and 2002, on his return to Sri Lanka the authorities would, or would have reason to, suspect that he had connections with the Tamil Tigers; and second, that the Tribunal did not deal with that claim. There is no merit in either proposition.

42    As to the first proposition, there is no doubt that the appellant did claim that the suspicions of the Sri Lankan army were first aroused because of his frequent changes of address. That explained why he was first mistreated in 2007, and perhaps why he had to continue to report for questioning until 2009 or 2010. He did not, however, expressly claim that his changes of address between 1995 and 2002 would mean that the Sri Lankan authorities would still suspect, or have reason to suspect, that he had Tamil Tiger links if he was forced to return to Sri Lanka in the future. Nor did any such claim clearly or necessarily arise from the evidence that the appellant did give, or the claims that he did advance.

43    The appellant relied on the fact that at paragraph 81 of its reasons, the Tribunal recorded that the appellant said that he had “specific problems that others did not face”. He submitted that those problems included the fact that he had a profile including changes of address in the past. That submission is not supported by the balance of paragraph 81. The “specific problems” the appellant adverted to had nothing to do with address changes in the past. They concerned the fact that he would be forced to be separated from his brothers and would not have a happy life in Sri Lanka.

44    Second, and more importantly, to the extent that any such claim was implicit in the appellant's case in support of a protection visa, the Tribunal clearly dealt with it. The Tribunal found, in fairly emphatic terms, that it was not satisfied that the appellant was suspected of having any links to the Tamil Tigers and was of no interest to the Sri Lankan authorities when he left Sri Lanka in 2012. A fair reading of the Tribunal's reasons also indicates that the Tribunal found, expressly if not implicitly, that if he now returned to Sri Lanka the appellant would not be suspected of having Tamil Tiger connections. Nothing was likely to have changed since the time the appellant left Sri Lanka. It is at least implicit in the Tribunal's reasons that it rejected any suggestion that the appellant's changes of address over ten years ago would give the Sri Lankan authorities any cause to suspect that the appellant had Tamil Tiger connections if he was now forced to return to Sri Lanka.

45    A fair reading of the Tribunal's reasons indicates that the Tribunal considered all of the claims advanced by the appellant in support of his application for a protection visa. It ultimately was not satisfied that those claims satisfied the criteria for the grant of a protection visa.

CONCLUSION AND DISPOSITION

46    The appellant's original ground or grounds of appeal were effectively withdrawn, or at least not pressed. The appellant's counsel conceded that they had no merit. That concession was properly made. The appellant's case concerning breach of s 424A or s 425, or denial of procedural fairness, was properly rejected by the primary judge for the reasons given.

47    The two new grounds of appeal have no merit and are rejected for the reasons that have been given. There is no basis upon which to conclude that the Tribunal erred in a jurisdictional sense in dealing with the appellant's review application. Nor is there any basis to conclude that the primary judge erred in dismissing the appellant's challenge to the Tribunal's decision.

48    The appeal is dismissed with costs.

Associate:

Dated:    15 August 2016