FEDERAL COURT OF AUSTRALIA

MZZQA v Minister for Immigration and Border Protection (No 2) [2016] FCA 1074

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

BUCHANAN J:

1    The appellant is Sri Lankan. He is a Tamil fisherman. In an application for a protection visa the appellant claimed:

I left Sri Lanka because of harassment and persecution from the Sri Lankan Navy because I was a Tamil fisherman. Many times the Navy came along side our boat and because we didn’t have lights on, they hit us. In 2008 the Navy boat shot at our fishing boat, damaging it. No one was hurt but my father and I were knocked into the water. Tamil fisherman have been persecuted by the authorities for many years, but around 15-20 days before I fled Sri Lanka I was targeted.

(Emphasis added.)

2    He then recounted a particular incident, to which it will be necessary to return. However, it is important at the outset to note that it was a particular set of circumstances where he was “targeted” which was the appellant’s stated reason for leaving Sri Lanka.

3    The appellant left Sri Lanka on or about 1 June 2012 and arrived in Australia on 20 June 2012 where he was classified as an “irregular maritime arrival”. He applied for a protection visa on 31 October 2012. The application invoked the provisions of both s 36(2)(a) and (aa) of the Migration Act 1958 (Cth), which provided as follows:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied 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    On 25 March 2013 the application was refused by a delegate of the Minister.

5    The appellant then applied to the Refugee Review Tribunal (“the RRT”) (whose functions are now performed by the second respondent) for review of the delegate’s decision.

6    Up to, and including, this point, the appellant was assisted by migration lawyers in Melbourne. His claims were set out in a statutory declaration (as part of his initial application), which was completed with the assistance of an interpreter and translator, subscribed before a solicitor.

7    After the introductory paragraph which I set out earlier, the appellant’s narrative in the statutory declaration continued as follows:

My father and I were fishing in Trincomalee. We normally provide fish to the Navy when they ask, the Navy take the best fish, and we don’t make any profit. On this particular day I had hidden the best fish under the nets so the Navy didn’t take them. Five Navy officers came and two boarded our boat and asked us if we had fish, we said no, they checked under the net and saw the fish. They hit me and my father, they hit me on the back with the butt of the rifle, and my father on the back of the head with the butt. They put a rifle to both of our temples. They were angry and shouting and yelling in Singhalese, but I could not understand them. They pushed me down and stomped three times on my chest. They were saying words sounding like accusing us of being LTTE. They kicked my father into the bottom of the boat, he hit his head and passed out. Then they left the boat with the fish. When my father woke up I told him some words they were saying and he said he thought they told us the next morning we had to report to the camp, Kumbiripiti 15th Navy (located on the shore of the beach) at 10am.

The next morning we went to the camp at 10am and while we were waiting, the Navy officer that had hit us the day before came inside the camp. My father asked why we had to report, they told him to wait and two other officers escorted me and that officer to a dark room, where we were left alone. He told me to sit in the chair and he tied my hands behind my back. He had a stick and he beat me hard all over my body. It seemed to be for about 15 minutes. Then he stripped me to my underwear, put me on my knees and then hit me many more times. He kept saying ‘Tamil’ … ‘LTTE’ … I didn’t understand the rest. Then he untied me and told me to get dressed, then he dragged me by the arm outside. Then they made me do labour jobs inside the camp, clearing rocks from the toilet area. If I was slow they kicked me. My father told me that while he was waiting for me, the commander came in and he begged them to release me. They showed him where I was working. He was screaming and crying at how I had been hit. The commander came and spoke to the navy officer that hit me. Then they released us.

For 2-3 days I didn’t go to work. Then we went and were working on the nets and those two same Navy officers came towards us. They were armed with pistols. They took me away from my father and were making hand actions like pointing a gun and saying the words in Singhalese to shoot me. After four days they came close to my house, my father tried to intervene and they said not to, or they would shoot me. They walked me about a kilometr [sic] away, they hit me several times, they loaded a rifle and threatened to kill me. My parents had followed and begged the officers not to shoot me, and they let me go. The officer told my father one day he would come to kill me as I had humiliated him and caused him to get in trouble at the camp.

The next day we fled back to Udappu. I was scared for my life and that is when I decided to flee to Australia.

8    In its decision of 8 July 2013 the RRT set out the whole of the statutory declaration. The additional parts were:

Why I cannot relocate

I could not go to any area of Sri Lanka. No matter what area I go the Navy officers will find me.

What I fear might happen if I go back to my home country:

If I return to Sri Lanka I fear I will be harmed because I am Tamil and have been threatened by the navy officers. They will take my life if I go back.

Who I think will harm or mistreat me if I go back:

I think I will be harmed by the Sri Lankan Navy officers.

Why I believe they will harm or mistreat me if I go back:

I believe the Sri Lankan Navy will harm me or mistreat me because I am a Tamil and because I have humiliated them and caused trouble for this officer. He has threatened to kill me and I believe he will do it.

Why I believe the authorities in my home country will not protect me if I go back:

The authorities in Sri Lanka cannot protect me because I am Tamil, they will not listen to us. Even if the government tried to protect me the Navy officer will make an excuse about why he shot me.

Why I think I will suffer significant harm:

I think I will suffer significant harm because I am a Tamil and because I have suffered cruel treatment in the Navy camp already. If I return, they will kill me.

(Bold in original.)

9    Notwithstanding the more general allegation of possible harm from the “Sri Lankan Navy”, at this point the claimed risk of harm appears related quite specifically to the particular Navy officer or officers involved in the incident that took place shortly before the appellant left Sri Lanka.

10    I have mentioned these matters at the outset because they provide an important context in which to assess the complaints made on the present appeal about the conduct and outcome of the hearing before the RRT.

11    However, before I focus more particularly on those circumstances, further procedural matters should be mentioned.

12    After the RRT’s decision the appellant applied to the Federal Circuit Court of Australia (“the FCCA”) for judicial review of the decision of the RRT. On 24 October 2014 that application was dismissed with costs (MZZQA v Minister for Immigration and Anor [2014] FCCA 3181). In those proceedings the appellant was not represented. Rather than then appeal to this Court, the appellant made two applications to the Minister to personally intervene in his case, but they were unsuccessful. The appellant then applied for an extension of time in which to appeal to this Court, which was granted by Mortimer J on 24 May 2016 (MZZQA v Minister for Immigration and Border Protection [2016] FCA 584). At the same time, her Honour directed that the appellant be referred for pro bono legal assistance.

13    Counsel acting pro bono for the appellant wishes to proceed on amended grounds of appeal and wishes the Court to receive in evidence the audio record of the proceedings before the RRT and some extracts of the transcript of that recording. The Minister opposed reliance on any new grounds of appeal, wishing apparently to confine the appellant to his earlier efforts at drafting grounds of appeal (without the assistance of his present pro bono counsel appointed at the direction of the Court) even though any claim that the Minister might be prejudiced was a very limited one.

14    The claim of prejudice was that if a new ground succeeds the Minister would be “deprived of a right of appeal”. Any appeal from the FCCA in a case of this kind is normally heard by a single judge, as the present appeal is being heard. That ground of opposition to the reformulated grounds of appeal is unpersuasive.

15    Accordingly, I granted leave at the hearing for the appellant to proceed on the proposed amended grounds of appeal.

16    As to the proposed new evidence, the Minister consented to the audio disc and transcript being received for the purpose only of deciding whether the amended grounds of appeal should be entertained, but otherwise opposed reception of the material into evidence. The appellant’s counsel wishes to rely on the material in support of the new grounds. If the material is relevant to a determination of whether those grounds should be entertained it is hard to see why it would not be potentially relevant also to a consideration of them. This, it seems to me, is not the same circumstance as the usual application to admit fresh evidence, which would be governed by the principles in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42], namely:

… first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: …

17    Here, the new evidence is plainly relevant to whether new grounds should be permitted. To then exclude that evidence from consideration of the reframed appeal seems to me to be a little artificial. What becomes of the material, and the argument it is designed to support is another issue. Accordingly I admitted the audio disc and transcript extracts into evidence and I received submissions based on the extracts from transcript.

18    As will appear from the above, consideration of the appellant’s claims that the RRT made a jurisdictional error (which was the underlying premise of the application for judicial review in the FCCA) will involve different grounds from those before the FCCA. The reasoning of the FCCA will not be central to a consideration of the new grounds, although the appeal still involves a challenge to the order of the FCCA dismissing the application before it. Those features of the present appeal mean that I need not be distracted by an obvious error or inadvertence in the decision of the FCCA which was referred to by Mortimer J (at [35]) – namely, the suggestion by the FCCA that the appellant was not believed by the RRT. The opposite appears to me to have been the case, as the extracts which follow will show.

19    The following extract is lengthy, but it is necessary to show the way in which the RRT assessed the critical factual elements of the appellant’s claims – largely by accepting them. The RRT said:

14.    In my assessment, the applicant is a credible witness. He described past events to me in a first-hand fashion and although there were some inconsistencies with past accounts, these were relatively minor and do not cause me to doubt the essential thread of his narrative. Another factor which leads me to conclude that the applicant is truthful is that he made appropriate concessions.

15.    What I accept has happened in the past is that the applicant and his father have fished, in the traditional way, about six months of the year in the seas off their home village, and then when the South-West monsoon comes, they move over to the other side of Sri Lanka to fish. In the case of the applicant and his father, their chosen fishing location in the East has been Trincomalee. The applicant produced a fishing permit with his father’s photograph which he said relates to Trincomalee. This was not translated, so I can give this little weight.

16.    The applicant described the occasional problems that he and his father have experienced in the past. He said in the past there were curfews or restrictions on when they could fish, but this is not currently a problem. He said from time to time the Navy would hail them and they were required to stop, put their hands up and stand up in their small boat. He said this is a nuisance because they had to drop everything, and it is also dangerous to stand up in a small boat when it is windy. He said sometimes the Navy boat would drive through their nets destroying them. He said the Navy boats would come and steal fish, or ask them for alcohol or money and they had to give whatever they had. He said there was nothing they could do about this extortion, they just had to put up with it. I asked him how many times the Navy had come to steal his fish, he said he thinks it happened about five or six times.

17.    I accept that the occasional harassment while fishing that the applicant has described has occurred. This is supported to a degree by country information, …

18.    However, this occasional harassment has not been sufficiently severe to have any major impact on the applicant’s ability to subsist. When I asked him about this he said:

    No problem at all we had our own business making sufficient money to be reasonably comfortable, in fact I would say life was good, we make about 25,000LKR per month on average.

19.    As discussed by the delegate, available country information does not support the applicant’s claims that the Sri Lankan Navy steals fishermen’s catches (CX299951). However, in my view, the applicant’s account of what happened shortly before he left Sri Lanka was sufficiently detailed so as to persuade me that, on one occasion at least, this occurred and this is the genesis of the applicant’s problems and of his fear. In summary, this is what I accept occurred:

a.    the applicant and his father caught a prize fish. It was worth between 800-900LKR/kg at the market and weighed around 9 or 10kg;

b.    they were returning to shore when they were approached by a Navy patrol boat with 5 men on board. The applicant hid the fish under their nets. The Navy asked if they had any fish, but his father said they only had some small fish which they offered to give to the Navy personnel;

c.    two of the Navy personnel boarded their boat and searched it. On discovering the prize fish, one of the Navy personnel, an officer, became enraged, started abusing the applicant and his father and started hitting them. His father was caught unawares and fell down and lost consciousness briefly. The applicant was beaten by this man. He told them that they had to report at the nearby Navy camp the next morning. The officer took the fish;

d.    the next morning the applicant and his father reported. The sentry at the Navy camp had no idea why they were there, but after they told him what they had been told to do the sentry fetched the Navy officer. This man appeared and said that he needed to question the applicant. He took the applicant inside the camp to a room, where he made him undress to his underwear then he beat him severely. This lasted about 15 minutes. Afterwards, the Navy officer made the applicant move some rocks at the back of the camp, which he tried to do but he was so badly hurt he could barely comply;

e.    unbeknownst to the applicant (he found out afterwards from his father) while he was inside the applicant’s father saw the camp commander and fell at his feet, begging him to release his son. He said the commander took pity on him and said that the applicant could go home;

f.    one important fact that is not disclosed in the applicant’s statement is that the camp commander told his father that he would see that the Navy officer is suitably punished and that he would ensure this would not happen again;

g.    the applicant went home supported by his father. He could not work for a few days because of bruising;

h.    some days later, the applicant was on the shore watching his father mend the nest [sic]. The Navy officer came past. When he saw the applicant he said to his father that he needed to talk to the applicant. The Navy officer walked the applicant away about one kilometre; two other Navy personnel joined them. The Navy officer made the applicant go into the trees and put his arms around a coconut palm then he felt a gun pressed to his neck. The applicant’s father had followed them, and he came running screaming ‘don’t shoot my son’. The Navy men ran off. The applicant said he does not know Sinhalese, but his father follows some Sinhalese and told him that as they ran off they said words to the effect that they missed the applicant today but he should be prepared for them to take him.

20.    I said to the applicant that his evidence about what the camp commander had said to his father is relevant to my assessment of the risk of something like this happening again because the commander has said he will make sure it will not happen again. The applicant agreed. I regard this is a significant concession against interest that lends weight to my finding that the applicant is a truthful witness. The applicant said we started to think the commander maybe did reprimand the Navy officer and he is taking it out on him. The applicant said he has no other reason to shoot him except being angry at him.

21.    I said to the applicant that what it sounded like to me is that a particular Navy officer had a grudge against him, and that there was no broader problem with the Navy, the Sri Lankan military or the Sri Lankan authorities more generally and that any risk of harm is confined to Trincomalee. The applicant argued that military personnel do not remain stationed in the one place and this Navy officer may have contacts or friends who he may tell about him and who may target him in his village.

Assessment

22.    I accept that the applicant has suffered significant physical mistreatment in the past at the hands of a rogue Navy officer. I accept that the applicant subjectively fears ‘serious harm’ such as being killed or suffering significant physical mistreatment at the hands of this Sri Lankan Navy officer who holds a personal grudge towards him because he and his father tried to conceal a fish and that this man may have subsequently received a reprimand from his commanding officer as a result of what he did to the applicant.

23.    I do not accept that the past events give rise to a real chance that Sri Lankan navy personnel more generally, or any other agents of the Government of Sri Lanka, will harm the applicant, either because of what has happened with the rogue Navy officer, or because of the harassment that he has described, such as being stopped and searched, while fishing.

24.    I do not accept that the applicant has any particular profile, due to past events, that may be regarded as adverse in the eyes of the agents of the Government of Sri Lanka. The applicant has not really claimed as much, other than that the rogue Navy officer made general accusations that he is ‘Tamil’ and ‘LTTE’. I regard these accusations to be confined to the context of the personal enmity between the Navy officer and the applicant.

(Italics in original.)

20    Next, it is necessary to observe that the incidents referred to by the appellant did not occur in or near his home village in the west of Sri Lanka but in the east of Sri Lanka. The RRT referred to this, while accepting that fishing in the east, at Trincomalee, represented traditional practice for the appellant:

25.    I do not accept that the applicant [sic] there is a real chance that the applicant will experience serious harm or that there are substantial grounds for believing that there is a real risk he will suffer significant harm in his home village, in the West of Sri Lanka, as what I accept has happened in the past occurred in Trincomalee in the East. I regard as far-fetched and speculative the applicant’s suggestion that the Navy officer who dislikes him may in the future be stationed at his home village or he will tell other people he knows in the Sri Lankan military about what happened such that they may target the applicant. I do not accept that the applicant has a well-founded fear of persecution or that there are substantial grounds for believing that there is a real risk he will suffer significant harm in his home village.

26.    Given that I accept that the applicant may return to Trincomalee to fish, according to his traditional practise [sic], I cannot regard it as a remote chance that the applicant will not encounter this man again. However, even taking into account that I accept that the Navy officer may have threatened the applicant on one occasion after his father received an assurance from his superior officer that it would not happen again, I am not satisfied that there is a real chance that the applicant would be subjected to further threats that connote an actual intention to do harm, or further physical mistreatment or harassment or that he would be killed as he claims. The applicant’s father has received an assurance of protection from this man’s commanding officer; I see no reason why the applicant and his father could not approach the commanding officer to explain what has happened and seek a further assurance. There is no reason to suggest that it would not be forthcoming. The applicant argues that it is quite common place for Navy officers to shoot people and in the newspaper it will be reported as the people being killed by ‘unknown persons’. He sought to produce Tamil language newspaper articles to me, which I explained would have to be in English if he wanted me to have regard to them. I am not satisfied that there is a common place practice for navy officers to shoot people in Sri Lanka.

(Emphasis added.)

21    The sentences I have emphasised are critical to one aspect of the new grounds of appeal. I will return to their significance shortly.

22    Then the RRT dealt with the appellant’s claim on a more general footing by considering whether, apart from the particular conflict with the Naval officer, there was a broader foundation for a well-founded fear of persecution:

27.    I have had regard to the country information provided in a written submission by the applicant’s representative. There are credible reports of unlawful killings, abductions, disappearances and mistreatment, including torture, in detention facilities by Sri Lankan security forces. Whilst I accept that some Tamils in Sri Lanka, in particular those from the North and East have faced arrest, interrogation and torture, the information provided tends to indicate that this is because they have engaged in some sort of activity or have some past history that brings them within one of the groups that the UNHCR Guidelines suggest are at risk, in particular a perception of connection to the LTTE.

28.    In the applicant’s case, he has no LTTE or other adverse profile, his issue is a personal grudge from a rogue Navy officer. He has been offered protection by this man’s commanding officer. I do not accept, as remote and far-fetched, that there is a reach chance that the applicant will experience systematic and discriminatory ‘serious harm’ now or in the reasonably foreseeable future, if he were to return to Sri Lanka.

29.    I conclude that the applicant does not have a well-founded fear of persecution, now or in the reasonably foreseeable future, for any Convention reason, because of his claims about past events.

23    Immediately thereafter the RRT dealt briefly with the potential application of s 36(2)(aa) to these particular factual elements, saying:

30.    Based on the same reasoning and the same ‘real chance’ test, I find further that the past events do not give rise to substantial grounds for believing that there is a real risk that he will experience significant harm as a necessary and foreseeable consequence of his removal to Sri Lanka.

(Footnote omitted.)

24    The RRT went on, in a detailed explanation, to deal with both s 36(2)(a) and s 36(2)(aa) in other contexts, which do not require attention on the present appeal, before saying:

83.    Even considering the applicant’s claims cumulatively I find that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future for any Convention reason. I conclude that he does not have a well-founded [fear of] persecution if he were to return to Sri Lanka for any Convention reason.

84.    Even considering the applicant’s claims cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka that there is a real risk that the applicant will suffer significant harm.

85.    For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

86.    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

(Headings omitted.)

25    The grounds of appeal now relied upon by the appellant are as follows:

The decision of the Second Respondent to refuse to grant a Protection (Class XA) visa is affected by jurisdictional error for the following reasons:

1.    There was a constructive failure to exercise jurisdiction in that the First Respondent misunderstood or misapplied the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), or in any event made an unreasonable decision.

Particulars

a.    It may be inferred from paragraph [26] of its reasons that the First Respondent misunderstood, or in any event misapplied, the concept of a “well-founded” fear of persecution per Article 1A(2) of the Refugees Convention; and/or the concept of a “real chance” of persecution per Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 389, 396-8, 406-7, 428-9.

b.    In any event, the Tribunal at paragraph [26] engaged in reasoning that was not open on its findings of fact or on the evidence before it.

2.    There was a constructive failure to exercise jurisdiction in that the First Respondent misunderstood or misapplied the criterion in s 36(2)(aa) of the Act.

Particulars

a.    It may be inferred from paragraphs [26] and [30] of its reasons that the First Respondent misunderstood, or in any event misapplied, the concept of a “real risk” of significant harm as defined by s 36(2A) and (2B) of the Act.

b.    See also the particulars to ground 1 above.

3.    [not pressed]

4.    The First Respondent overlooked centrally relevant material and thereby failed to discharge its statutory task.

Particulars

a.    The First Respondent accepted, at [26], that the Appellant may return to Trincomalee to fish if returned to Sri Lanka.

b.    The Tribunal, referring to general country information, found at [27] that the Appellant was not at risk of harm because he did not fall into certain categories, e.g. persons perceived to have links to the LTTE.

c.    The First Respondent’s reasons contain no reference at all to an account, in a Tamil language newspaper, of an atrocity apparently perpetrated by the Sri Lankan Navy against fisherman [sic] near Trincomalee. It may be inferred that this material was ignored or overlooked.

[Each of the paragraphs referred to is set out earlier in this judgment.]

26    Ground 1 and was developed in written submissions as follows:

22.1    … At [26], the Tribunal refers to the fact that the commanding officer had previously given an assurance, the fact that the appellant was threatened by the same SLN officer after this assurance was given and the fact that the appellant could seek a further assurance. These findings of fact are capable of supporting a finding that a further assurance would be given if sought. But they are not capable of supporting a finding that such further assurance would be effective, let alone so effective as to reduce the possibility of further threats, etc to the point of no “real chance”.

22.2    Nor does there appear to be any other evidence not referred to in the Tribunal’s reasons that is capable of supporting the conclusion reached.

22.3    This suggests that the Tribunal did not in truth understand what is meant by “real chance”, or that it simply failed to apply the that [sic] test correctly. In any event, it cannot be said that the Tribunal discharged its statutory task.

27    I do not see any real basis for the suggestion that the RRT did not understand the “real chance” test or failed to apply the correct statutory test. Obviously some evaluation of possible risks of harm was required. That evaluation was made in a context which accepted that the chance of encountering the Naval officer again was not remote. Nevertheless, the evaluation that this would not represent a real chance of persecution was open to the RRT. Having accepted the appellant’s account about these matters, the RRT was obviously proceeding upon a factual foundation which was not adverse to the appellant. The judgments then required do not raise a case of potential jurisdictional error.

28    An argument was developed to the effect that the RRT acted unreasonably by assuming that any further assurance of future protection would be forthcoming and (implicitly) effective. In my view this misdescribes the RRT’s process of reasoning. The RRT simply pointed out that there was no basis to assume that protection against the particular Naval officer would not be available – i.e. offered and (implicitly) effective. That was not unreasonable. It was a rational judgment relevant to an overall assessment of whether there was a well-founded fear of future harm from the particular Naval officer if encountered again some years after the particular incident.

29    The argument in support of Ground 2 also arose from the observations of the RRT at [26], together with [30]. In written submissions in support of this ground attention was drawn to the provisions of s 36(2A) and (2B) of the Migration Act in the following way:

23.    At the relevant time, a non-citizen in Australia satisfied s 36(2)(aa) if the Minister was “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

24.    “Serious harm” was defined in s 36(2A) to include, relevantly, death, torture and cruel, inhuman or degrading treatment or punishment. However, s 36(2B)(b) provided that there is “taken not to be a real risk” if the Minister was satisfied that:

… the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm

25.    Although the first sentence of [25] shows some consciousness of the separate test in s 36(2)(aa), nowhere does the Tribunal refer to or apply ss 36(2A) or (2B). For this reason alone, the Tribunal failed to discharge its statutory task. It also failed to do so for analogous reasons to those identified. It did not make any findings of fact, or refer to any evidence or material, capable of supporting its conclusion that there was no real risk of significant harm.

I do not accept the contention that the RRT misunderstood or misapplied s 36(2)(aa). The RRT made a finding that the matters to which it referred in [26] took the appellant’s circumstances outside the operation of s 36(2)(aa). In my view the reasoning of the RRT was adequately disclosed and sufficiently clear. No jurisdictional error has been identified.

30    Ground 4 raises issues arising from the same evaluation. In this instance, the RRT was assessing the related suggestion that Navy officers might be accustomed to shoot people with impunity.

31    That suggestion was made by the appellant based on his reference to about seven Tamil language newspaper articles he had brought with him to the RRT hearing. One incident referred to concerned the discovery of 20 burnt bodies in a village near where the appellant fished. This is the atrocity referred to in Ground 4. This, however, was just an illustration of the more general proposition referred to by the RRT at [26] in the passages I emphasised earlier.

32    It is an important contextual consideration that the appellant referred to these newspaper articles to answer a criticism made by the delegate. The delegate had rejected suggestions that the Sri Lankan Navy took fish from fishermen. Indeed, the delegate suggested that the appellant had fabricated his own account. The RRT, on the contrary, accepted the appellant’s factual complaints. To the extent, therefore, that general accounts in newspapers were provided to respond to the delegate’s findings, at a factual level they were unnecessary.

33    Upon it being apparent that the RRT could not read the documents in Tamil, the appellant summarised three of the seven. At best, this might represent a form of country information, although there may be real doubt about how much weight could be given to individual newspaper articles. A summary was of little utility, except to illustrate the nature of the articles. It may have been open to the appellant to ask that they be translated directly by the interpreter but even then (accepting the appellant’s summary of their content and character for this purpose) that would not take the matter very far. A general suggestion that references in newspaper articles to shootings by “unknown persons” should be attributed to the Sri Lankan Navy could not readily be accepted on the basis of unsupported allegation. The RRT did not accept the general allegation made against the Navy. It was unnecessary to refer specifically to the atrocity referred to in Ground 4. It had no particular independent significance for the appellant’s claims.

34    There can be no complaint that the RRT concluded:

26.    … I am not satisfied that there is a common place practice for navy officers to shoot people in Sri Lanka.

35    Any complaint of general harassment of fishermen by the Navy was beside the point. The appellant, on his own account, had lived with difficulties of this kind for years. His claim to fear persecution was much more focussed and fact-specific. It involved a claim to fear death at the hand of a particular Navy officer as retribution for his father’s complaint to that officer’s commander.

36    In my view, there was no apparent failure to afford the appellant a proper hearing, or any apparent denial of procedural fairness, or any reason to think that his claims were not evaluated diligently and dispassionately against the relevant statutory tests.

37    I do not uphold any of the grounds of appeal. It follows that the FCCA was correct to conclude that no jurisdictional error is apparent. The appeal against the order of the FCCA should therefore be dismissed. Costs must follow the result.

Associate:

Dated:    6 September 2016