FEDERAL COURT OF AUSTRALIA

AWD15 v Minister for Immigration and Border Protection [2016] FCA 1002

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The appellant claimed a fear of persecution or significant harm by reason of his Tamil ethnicity, his support for the United National Party (UNP), and the difficulties he would face as a failed asylum seeker, forced returnee and by reason of having left Sri Lanka illegally. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Protection (Class XA) visa (protection visa).

2    The sole ground of appeal raised in the notice of appeal is that “The Federal Circuit Court Judge committed jurisdictional error in dismissing proceedings”. The appellant did not file any written submissions prior to the hearing but made oral submissions in support of his appeal. The Minister provided written submissions in advance to the appellant and these were sight translated to him before the hearing.

3    At the hearing, in addition to repeating his claims to fear harm if he was returned to Sri Lanka, two issues arose from the appellant’s oral submissions:

(1)    whether the Tribunal applied the wrong test in assessing the risk of harm if the appellant is returned to Sri Lanka in so far as the appellant contended that the Tribunal engaged in “guessing what will happen to [him]” and relying upon past facts; and

(2)    whether the Tribunal erred in the way in which it dealt with the appellant’s supporting documents, that is, in giving those documents no weight in light of its finding as to the appellant’s lack of credibility based upon his evidence.

4    I also raised a concern with the Minister’s legal representative at the hearing as to whether there had been a failure to provide reasons in compliance with the obligation in s 430 of the Migration Act 1958 (Cth) (the Act) and if so, as to the consequences of any such failure.

5    Given that the appellant raised the issues to which I have referred only at the hearing of the appeal and that I had raised a further issue as to the adequacy of the Tribunal’s reasons, the Minister sought leave to file a written submission to address those matters including to ensure that the Court’s attention was drawn to the relevant authorities. I granted that leave and set a timetable within which the appellant was to file any written submissions in response, and for any reply by the Minister.

6    For the reasons that follow, the appeal must be dismissed.

2.    BACKGROUND

2.1    Visa application and decision of the delegate

7    The appellant is a citizen of Sri Lanka who arrived in Australia in August 2012 as an Irregular Maritime Arrival.

8    The appellant lodged an application for the protection visa which was stamped as received on 28 August 2013. On 10 January 2014, a delegate of the Minister refused the grant of a protection visa.

2.2    The Tribunal’s decision

9    On 16 January 2014, the appellant applied for review of the delegate’s decision. Oral arguments were made and evidence was presented at a hearing before the Tribunal on 30 March 2015. The appellant was assisted by an interpreter and a representative. At the representative’s request, the appellant was given until 13 April 2015 to provide further written evidence and to provide written comments on matters raised at the hearing, pursuant to s 424AA of the Act.

10    On 5 May 2015, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

11    The Tribunal set out the appellant’s claim for protection at [1], [24] to [40] in its reasons. In summary, the appellant claimed he would face harm if returned for the following reasons:

(1)    he is an ethnic Tamil of Catholic faith married to a Sinhalese woman whose family does not support the marriage;

(2)    his active involvement in and strong support of the UNP and that of his family, including that he had previously canvassed votes and actively campaigned for UNP candidates;

(3)    his imputed favourable opinion of the Liberation Tigers of Tamil Eelam (LTTE) on the basis of being a Tamil from the North West of Sri Lanka;

(4)    the fact that his is a Tamil from the North West of Sri Lanka; and

(5)    his status as a failed asylum seeker, a forced returnee from a Western country and his illegal departure from Sri Lanka.

12    The Tribunal did not accept the appellant’s claims. The Tribunal expressed “significant concerns regarding aspects of the applicant’s claims and evidence, particularly those he claims led him to leave Sri Lanka” (see [41] of the Tribunal’s reasons).

13    As to the appellant’s marriage to a Sinhalese woman, the Tribunal noted that upon questioning the appellant, the appellant indicated that he did not now face any difficulties by reason of his marriage to a Sinhalese woman even though he did around the time of marriage, and he did not fear harm on this basis. The Tribunal accordingly rejected this aspect of the appellant’s claim (see [44]-[46] of the Tribunal’s reasons).

14    The Tribunal further found that the appellant was not credible as to his or his family’s active, past and future involvement in the UNP in the manner he claimed, concluding that his evidence was inconsistent, his knowledge not commensurate with the level of involvement claimed, and he “has fabricated these claims and concocted evidence to achieve an immigration outcome” (see [47]-[81] of the Tribunal’s reasons). The Tribunal did not give any weight to the appellant’s documentary evidence which purported to support his claimed involvement with the UNP due the appellant’s lack of credibility and country information about the prevalence of fraudulent documents in Sri Lanka.

15    The Tribunal also did not accept the claim that the appellant would be perceived as a supporter of the LTTE (see [82]-[99] of the Tribunal’s reasons). The Tribunal found that the appellant and his family had never been involved with, or were imputed to be involved in, the LTTE, or perceived to be opposed to the government due to their ethnicity, or that there was a real chance of the appellant suffering discrimination due to his ethnicity.

16    In light of the country information, the Tribunal did not accept that there was a real risk of significant harm that would arise from the appellant’s status as a failed asylum seeker, or that he would be imputed as being pro-LTTE because he was a failed asylum seeker. Further, while the Tribunal accepted that, as a Tamil returnee to Sri Lanka, the appellant would go through a process which would bring him into contact with the Sri Lankan authorities, the Tribunal was not satisfied on the evidence before it that this would give rise to differential treatment for a Refugees Convention reason (see [104]-[121] of the Tribunal’s reasons).

17    Similarly, while the Tribunal accepted that the appellant had departed the country illegally and that there was therefore a possibility that the appellant would be held for a limited period in remand whilst awaiting bail, the evidence did not establish that the appellant would be singled out or treated any differently because he left Sri Lanka illegally (see [122]-[145] of the Tribunal’s reasons).

18    Ultimately, the Tribunal was not satisfied the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention and therefore that the appellant did not satisfy the criterion in s 36(2)(a) of the Act. Nor was the Tribunal satisfied that the appellant was a person in respect of whom Australia had complementary protection obligations under s 36(2)(aa).

2.3    The Federal Circuit Court Decision

19    The appellant sought judicial review of the decision of the Tribunal. On 8 February 2016, the Federal Circuit Court heard arguments and delivered judgment dismissing the application. The appellant raised two grounds before the primary judge:

Though the tribunal did accept in the decision record that I may be remanded upon return in conditions which are cramped and uncomfortable (possibly for a fortnight) I believe the Tribunal did not accept that I would suffer harm under such prison conditions.

I am an ethnic Tamil and I believe I would suffer serious harm if returned, my claims were not fully heard and considered by the Tribunal.

20    The primary judge concluded that the appellant’s first ground was an impermissible challenge to the merits of the Tribunal decision and failed to make out any jurisdictional error. As to the second ground, the primary judge concluded that the Tribunal gave the appellant a genuine hearing and made comprehensive adverse findings in relation to the appellant’s claims.

3.    CONSIDERATION

3.1    Did the Tribunal apply the correct test in assessing the risk of harm if the appellant is returned?

21    The appellant took issue with the manner in which the Tribunal set about the task of assessing the risk of harm if he is returned to Sri Lanka. Specifically, the appellant contended that the Tribunal had engaged in “guessing what will happen to me if I go back” and relied upon past events. As noted by the respondent in further written submissions, this ground appears to be that the Tribunal applied the wrong test in respect of the appellant’s risk of future harm in that it based its findings on this issue on its assessment of whether or not the appellant had suffered harm in the past.

22    With respect, I do not accept the appellant’s submission.

23    First, a determination of whether a (subjective) fear is (objectively) “well-founded” for the purposes of determining whether the appellant satisfies the definition of a refugee requires the Tribunal to assess what may occur in the future. A fear is “well-founded” when there is “a real substantial basis for it”, even though the chance of the fear eventuating is less than 50 per cent: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). On the other hand, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid. Similarly, in determining whether there is a real chance that the appellant may suffer significant harm in the sense defined for the purposes of his complementary protection claim, the Tribunal must reach a view as to what may occur in the future.

24    Secondly, in forming an opinion as to whether there is a real chance of persecution for a Refugees Convention reason, past events may assist in assessing what is likely to occur in the future. As the joint judgment held in Guo at 574, “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence.” Thus, in the context of applying the definition of a refugee in the Refugees Convention, the joint judgment in Guo held at 575:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

25    It is not, therefore, an objection to deciding what may occur in the future to have regard to past events and, as an aspect of that, to consider whether the appellant is to be believed in his claims as to what occurred to him in the past.

26    Thirdly, in my view, the Tribunal in this case undertook its fact finding task in accordance with these principles. As the Minister submitted, having found that the appellant was not a credible witness and had fabricated his claims to fear harm by reason of his political opinion, it was open to the Tribunal to find that he would not be at risk of persecution or serious harm for this reason in the future if he was returned to Sri Lanka. It follows that it is not accurate to suggest that the Tribunal merely “guessed” what will happen and no error has been established on this ground in the Tribunal’s consideration of the statutory criteria for the grant of a protection visa under s 36(2)(a) or in the alternative s 36(2)(aa).

3.2    Did the Tribunal err in giving the appellant’s supporting documents no weight?

27    The appellant also submitted that the Tribunal erred in the way in which it dealt with his supporting documents. In the further written submission filed after the hearing, the appellant submitted that:

(1)    despite its credibility concerns, the Tribunal was obliged to consider the documents provided by the appellant in support of his claims;

(2)    the fact that the aspects of his claims were found to be not credible does not allow the Tribunal to give his documentary evidence no weight;

(3)    nor is the existence of document fraud in Sri Lanka a valid reason for disregarding the documents on which the appellant relied;

(4)    the Tribunal ought to have made clear findings of fact with regard to the nature of the appellant’s documents after considering the documents rather than giving them no weight; and

(5)    the Tribunal ought to have made a finding as to whether the documents were genuine.

28    By way of example, the appellant pointed to the Tribunal’s rejection of his claim that he joined the UNP in 2008 and became a member in 2009 (at [67]), and submitted that the “Tribunal surely could not have made that finding without properly considering and assessing if the documents I provided were genuine or not. I provided amongst other documents a …UNP membership card.”

29    The Tribunal’s reasoning relevantly begins with its consideration of whether the appellant was a credible witness based upon his evidence at the hearing and in response to the notice given under s 424AA. In this regard, the Tribunal identified various inconsistencies and deficiencies in the appellant’s evidence with respect to his claims. This included his lack of knowledge of information of which the Tribunal considered a person with his level of claimed involvement would know and deficiencies in his explanations, each of which were said to add to the Tribunal’s finding that the appellant is not credible as to his claims (at [49]-[60]). The Tribunal concluded at [61] with respect to his credibility that:

For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to these claims. The Tribunal is of the view that the applicant has fabricated these claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness as to these claims and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to being targeted because of his active political involvement in the UNP, being involved in politics generally or because of his family involvement in the UNP.

30    In so finding, the Tribunal took into account the possibility of discrepancies for example because of genuine lapses of memory (at [62]). The Tribunal also took into account that some of the information provided by the appellant had been consistent over time. However, the Tribunal did not consider that the appellant’s consistent evidence on those matters outweighed its significant credibility concerns given that those matters were relatively easy matters to recall (at [63]).

31    Having so found, the Tribunal at [64]-[65] turned to consider the documentary evidence which the appellant submitted to support or corroborate his claims:

The Tribunal has considered the documentation he has submitted to support his claims. Firstly as raised with the applicant the letter from Jam Cyril refers to him being involved in the May Day Rally [at a particular location], which the applicant has not provided any information he was involved, which the Tribunal may expect if true. Therefore on the basis of this, his lack of lack of credibility as to these claims and information on the prevalence of document fraud in Sri Lanka I place no weight on this letter as evidence of the difficulties faced by the applicant as outlined in this letter and activities he undertook in Sri Lanka to campaign or support for the UNP or that he was involved in a May Day rally [at the relevant location].

Similarly as raised with the applicant on the basis of his lack of credibility as to these claims and prevalence of document fraud in Sri Lanka I place no weight on the following letters to support the applicant’s claims of active involvement in the UNP, membership of the UNP, campaigning for the UNP and its candidates, threats or difficulties as a result or that he fled Sri Lanka for these reasons…

32    The Tribunal then listed the letters from third parties and other documents on which the appellant relied.

33    In essence, therefore, the Tribunal gave those documents no weight given the country evidence as to the prevalence of document fraud in Sri Lanka and its findings as to the lack of any credibility in the appellant’s evidence. I do not consider that the Tribunal fell into jurisdictional error in so deciding.

34    First, it was open for the Tribunal to have regard to country evidence in assessing the appellant’s claims and to give that evidence such weight as the Tribunal considered appropriate including so as to prefer that evidence over the appellant’s documentary evidence. As, for example, the Full Court explained in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:

By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence.  By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant.  There can be no objection in principle to the Tribunal relying on ‘country information’.  The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.  Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted.  It may be used to assess the credibility of a claim of a well-founded fear of persecution...

35    Secondly, it was open to the Tribunal to have regard to its findings as to the appellant’s credibility in deciding whether, given the country information about fraudulent documents, it would accept these particular documents as credible. In this regard, the Tribunal was entitled to make an assessment of the appellant’s credit before considering the corroborative evidence. There is nothing irrational about the Tribunal rejecting a document by giving it no weight in circumstances where, as here, it has found that the witness is not credible and there is no evidence of the document’s authenticity other than that given by that witness: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at 491-492 [36]-[37] (North and Lander JJ), 493 [50] (Katzmann J).

36    I reached a similar view in BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 at [30]- [32] in accepting that there was a logical and intelligible justification given for the Tribunal’s decision in that case not to afford a letter on which the appellant relied any weight. In particular at [30]-[32] of my reasons, I held that:

…in my view, it was open to the Tribunal to attach no weight to the letter. It is apparent from the Tribunal’s reasoning at [177] that its finding that it could give the letter no weight took into account not only the content of the letter and various deficiencies which cast doubt upon its genuineness, but also the Tribunal’s findings that the appellant was not affiliated with the BNP due to inconsistencies in his evidence and country information. I accept in this regard the Minister’s submission that the Tribunal’s approach accords with the “poisoned well approach” articulated by McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [49], namely:

… [I]t is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.

The same may equally be said where the party’s credibility has been so weakened by questioning, as here, in an inquisitorial hearing by an administrative tribunal.

37    For these reasons, the appellant’s challenge to the Tribunal’s findings on the appellant’s documentary evidence must be dismissed.

3.3    Adequacy of the Tribunal’s reasons

38    As earlier mentioned, I also raised a concern at the hearing as to whether the Tribunal’s reasons complied with its obligation to provide reasons under s 430 of the Act. I raised this given that the complexity, length (39 pages single spaced) and extent of repetition contained in the Tribunal’s reasons made them extremely difficult to follow even for a native English speaker.

39    Section 430(1) relevantly provides that:

Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based; …

40    In his further submissions after the hearing, the appellant submitted that:

The fact that the Tribunal’s decision was rather lengthy and repetitive could indicate that the Tribunal did not assess my specific claims, but rather may have copied sections of other decisions made by Tribunal members who had assessed claims presented by Tamil asylum seekers. My specific claims … were not lengthy, it is my understanding that the claims I raised were not complicated. As the Tribunal’s decision was 39 pages, rather lengthy and its reasoning repetitive, I am concerned that the Tribunal either replicated excerpts of other decisions or did not approach my hearing with an open mind. I am of the view that the Tribunal made every attempt to refuse my claims for protection rather than consider all of my claims, including the documentary evidence.

(emphasis in the original.)

41    Contrary to the appellant’s submissions, I do not consider that the Tribunal failed in its duty to provide written reasons in accordance with s 430.

42    First, the reasons which are required by s 430 of the Act are “reasons why the Tribunal considers that the application should be dismissed. And so long as the reasons given are sufficient for that purpose, the requirements of s 430 are satisfied”: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 396 [235] (Callinan J). Despite being prolix and repetitive, the reasons nonetheless suffice to give the reasons why the Tribunal considered that the application should be dismissed.

43    Secondly, contrary to the appellant’s suggestion, there is nothing to suggest that the Tribunal has copied sections of other decisions in its analysis of information personal to the appellant and his circumstances. Otherwise, insofar as the decision may contain “template” reasons, being sections “cut and pasted” from other decisions, such as in describing relevant provisions or country information, that in itself is not an indication that the Tribunal has approached the claims with a mind closed to persuasion or that it may be perceived to be biased by a reasonably informed layperson: SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45; (2012) 200 FCR 223 (SZQHH) at 237[43]- 239[50] (Rares and Jagot JJ); SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 314 ALR 146 (SZRBA) at 152[35] (the Court). In this regard, in discharging the function of considering each claim afresh, the decision maker is not expected to have a blank or empty mind; to the contrary she or he can be expected to build up expertise including into the situation pertaining in particular parts of the world, and to approach like cases consistently: SZQHH at 237[43]-[44]. That said, adopting the practice of incorporating template submissions increases the risk that the Tribunal may overlook a submission or deal with each case on its own merits: SZRBA at 152[36]. However, as the Minister submits, the appellant has not identified any claim or submission which the Tribunal is said to have overlooked or demonstrated a failure to deal with his claims on their merits.

44    Fourthly, I accept the Minister’s submission that the contention that the Tribunal “made every attempt to refuse [his] claims” should be taken as an expressing the appellant’s emphatic disagreement with the Tribunal’s decision. There is nothing to indicate that the Tribunal member was biased or may be perceived to be biased because the Tribunal member addressed the appellant’s claims in an unduly repetitive and prolix manner.

45    Finally, I note that as I did not reach the view that the reasons in this case failed to comply with s 430 of the Act, it was unnecessary to consider whether reasons which are so complex and prolix as to be effectively unreadable can thereby fail to communicate the basis for the decision and be demonstrative of jurisdictional error.

4.    CONCLUSION

46    For the reasons set out above, the appeal must be dismissed with costs.

Associate:

Dated:    24 August 2016