FEDERAL COURT OF AUSTRALIA

SZTJY v Minister for Immigration and Border Protection [2016] FCA 1185

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the appeal assessed to be $3,500.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    This is an appeal from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) on 4 May 2016, dismissing the appellant’s application for judicial review of the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) given on 16 September 2013. The Tribunal had affirmed a decision of a delegate of the first respondent (Delegate) not to grant a Protection (Class XA) Visa (Visa) under section 36 of the Migration Act 1958 (Cth) (the Act).

2    The appellant, who was unrepresented before this Court, contends that the FCCA erred in failing to find that the Tribunal decision was affected by jurisdictional error in that the Tribunal:

(1)    denied him procedural fairness;

(2)    failed to consider country information submitted to it; and

(3)    reached a decision that was irrational, illogical and unreasonable.

3    The grounds of appeal relied upon by the appellant, when read with the particulars supplied, are extensive and are set out in full below. The asserted errors of the Tribunal are, in essence, the same as those considered and rejected by the learned primary judge in the FCCA.

4    The first respondent (Minister) filed an outline of submissions on 26 July 2016 in advance of the hearing, which carefully set out the background to the appeal, and the reasons why the Minister submitted that the appeal should be dismissed.

5    The appeal was initially listed for hearing on 2 August 2016, but was adjourned at the appellant’s request due to his ill health. The appellant made oral submissions via a Tamil/English interpreter at the hearing, but provided no written submissions.

6    This is a case in which the appellant’s claims are based almost entirely on the evidence given by the appellant himself. With one exception, no independent corroboration is supplied of specific aspects of the appellant’s evidence. As with many cases of this type, it fell to the Tribunal to make its own assessment of the facts. This in turn led to greater emphasis being placed on one question: how trustworthy is the appellant’s evidence?

7    The Tribunal closely questioned the appellant during the hearing and found that there were a number of inconsistencies and logical improbabilities in his version of events. There is some suggestion that he had changed his story as a matter of convenience over time. Taken together, the Tribunal formed the view that it could not trust the accuracy of his story.

8    I would emphasise at the outset that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the Visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the Visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant the Visa is lawful under the Act, including whether it is procedurally fair, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA under section 24 of the Federal Court of Australia Act 1976 (Cth).

9    For the reasons set out below, in my opinion, none of the grounds of appeal upon which the appellant relies have been made out.

2.    BACKGROUND

2.1    The Visa application and the decision of the Delegate

10    The appellant is a citizen of Sri Lanka who left that country by boat, and arrived in Australia as an undocumented irregular maritime arrival on 21 May 2012. He made his application for the Visa on 22 September 2012. The Delegate refused his application on 7 January 2013.

2.2    The Tribunal’s decision

11    On 30 January 2013, the appellant applied for a merits review of the Delegate’s decision by the Tribunal. The hearing before the Tribunal was conducted on 9 April 2013. The appellant gave evidence at the hearing with the assistance of a Tamil/English interpreter, and was represented by a solicitor and migration agent, Mr Hannan, at the hearing, who provided extensive written submissions prior to the hearing commencing. On 17 April 2013, after the conclusion of the hearing, additional submissions were supplied to the Tribunal, which addressed particular matters that arose during the hearing including some credibility issues raised by the Tribunal. On 28 August 2013, the Tribunal invited the appellant to respond to additional country information that the Tribunal intended to take into account. On 6 September 2013, Mr Hannan supplied a short submission in response to that invitation.

12    On 16 September 2013, the Tribunal affirmed the Delegate’s decision not to approve the grant of the Visa.

13    The appellant’s claims were made in his statutory declaration of 22 September 2012 and in his oral evidence before the Tribunal. They may be summarised relevantly as follows:

(1)    The appellant is a single male Sri Lankan who is of Tamil ethnicity and a practising Hindu.

(2)    From around December 2003 until October 2006, the appellant worked full-time in a Tamil-owned shop located in Puttalam district North Western Province. During that time it was common for groups of Sinhalese thugs to demand extortion money which, if not paid, would result in threats, abuse, theft and beatings.

(3)    In late 2006, the appellant commenced working for a Tamil man (S) as his driver.

(4)    In about 2009, a relative of the appellant (M), was arrested by the Sri Lankan army and accused of involvement with the Liberation Tigers of Tamil Eelam (LTTE) and was held in several detention camps located in the Vavuniya District, Northern Province of Sri Lanka. The appellant spoke some Sinhalese and as the sole male in his family, made repeated representations to the Sri Lankan army on behalf of M, seeking his release.

(5)    In March 2011, the appellant’s employer, S, stood for election as a member of the Sri Lankan Freedom Party. The appellant was asked to, and did, assist S in his election campaign.

(6)    The appellant’s employer lost the election to a Sinhalese man (J) and in April 2011 two Sinhalese men dragged the appellant from his van and beat him as retribution for assisting in S’s election campaign.

(7)    In June 2011, a man whom the appellant understood to be a colleague of J, falsely accused him of involvement in a local bank robbery. The police arrested him and beat him. The next day, video evidence of the robbery exculpated the appellant. He was released. The appellant tried, but was not permitted to lodge a complaint for his false arrest and poor treatment.

(8)    The appellant was a member of a local Tamil temple development committee that was responsible for organising Hindu ceremonies in the local temple. In September 2011 several Sinhalese men followed the appellant home after a ceremony and threatened that he “would suffer the consequences” if he did not stop his involvement in the temple or with S.

(9)    In or around 30 September 2011, the appellant’s relative, M, was released from detention by the Sri Lankan army. The appellant said M’s release was due to international pressure from the International Committee of the Red Cross (ICRC) and other human rights bodies. The appellant had to sign to verify M’s release and the appellant was required thereafter to stand surety that M would report to the army “every 3-6 months”.

(10)    The appellant and M were aware that people who were released from detention as a result of international pressure were usually killed within a few months. M subsequently went into hiding.

(11)    In February 2012, the appellant was again beaten by Sinhalese men who threatened to kill him if he did not stop working for S. Despite these threats the appellant continued in the employment of S, so that he could feed his family.

(12)    On about 23 April 2012, members of the Sri Lankan Criminal Investigation Department (CID) were led to the appellant’s home by the same informant as that identified in subparagraph (7) above. The appellant was out working at the time. His mother told him subsequently that the CID wanted to question him and M, and required him to report to the police station. The appellant did not do so, and on about 25 April 2012 the CID returned. The appellant was again out, driving a truck for S. He did not know where M was, and was afraid to go to the CID without him. On or around 26 April 2012, the appellant fled from home and on about 2 May 2012, boarded a fishing boat for Australia.

(13)    In light of this, the appellant fears that he will be harmed by various Sri Lankan authorities, local Sinhalese people and by his former employer’s political opponent, J. He is concerned that his assistance of M would lead to suspicion that he supports the LTTE and because he belongs to a particular social group of failed Tamil asylum seekers who are suspected of being members of the LTTE.

14    The Tribunal assessed the appellant’s claims for protection and rejected them, primarily on the basis that it did not accept that large portions of his evidence could be believed. The Tribunal’s relevant findings were as follows:

[117]    Accordingly, the Tribunal disbelieves the applicant’s claims that he had a cousin who was detained from 2009 on suspicion of involvement with the LTTE; that the international community, including the Red Cross, had the cousin released; that the applicant guaranteed this cousin’s attendance when required by the army; that the CID came to the applicant’s home in April 2012 looking for him and his cousin and that they came to his home after he left Sri Lanka to find him.

[118]    Because the Tribunal finds the applicant is not a witness of truth the Tribunal also disbelieves his claims that he had an uncle who was involved with the LTTE. For the same reasons the Tribunal disbelieves the applicant’s claims that he assisted his employer in elections and that he suffered harm from other people associated with his employer’s opponent such as being threatened at the time of the election; being dragged out of his vehicle and beaten in April 2011 (or that any other employee suffered the same harm); being arrested and detained and maltreated by police in June 2011 on the false charge of robbing a bank; being threatened either during or after a religious festival in September 2011 and again being beaten in February 2012 when driving a truck.

15    As a result of these findings, the Tribunal concluded (at [120]) that the only credible evidence about the appellant is that he is a Tamil Hindu male who attended school until year 11 and has family living in his home region. It also accepted that the appellant was employed as a truck driver and as a sales assistant whilst in Sri Lanka.

16    The Tribunal then proceeded to review the appellant’s claim of a well-founded fear of persecution pursuant to subsection 36(2) of the Act on the basis of his general characteristics as a Tamil Hindu man who left Sri Lanka illegally and who will return there as a failed asylum seeker. On this basis, having regard to the available country information, it concluded that, whether considered separately or cumulatively, the risk of the appellant suffering harm on the basis of his ethnicity, religion, age, the place where he lived in Sri Lanka, his illegal departure and his return as a failed asylum seeker, is remote

17    For substantially the same reasons, the Tribunal concluded that the appellant was not entitled to complementary protection under subsection 36(2)(aa) of the Act.

2.3    The decision of the FCCA

18    The appellant was not represented before the FCCA but was assisted by a Tamil/English interpreter and filed a short written submission.

19    The grounds relied upon before the FCCA are cross-referenced in the grounds of appeal relied upon in this Court. It is accordingly convenient to set out both as follows.

20    Before the FCCA the grounds relied upon were as follows:

1.    The Tribunal committed jurisdictional error by failing to give proper, genuine and realistic consideration to the Red Cross document submitted by the applicant which appeared to corroborate assertions made by him in support of his application. The Tribunal denied procedural fairness to the applicant.

Particulars:

a)    Failure to consider a claim that clearly arose before the Tribunal, that being that the Applicant submitted a document issued by Red Cross stating that a person with the same name as the applicant’s cousin was held in detention by the authorities from 2009 until 30 September 2011.

b)    Despite the fact that the Tribunal acknowledged the document purports to corroborate the claims made by the applicant about his cousin being held in detention (at page 21 of 28) paragraph 123 of the decision record.

c)    However at page (21 of 28) paragraph 117, the Tribunal disbelieves the applicant’s claims that he had a cousin who was detained from 2009 on suspicion of involvement with the LTTE. It is a clear contradiction in its findings. Resulting in confusion and it is not fair and just to the applicant.

d)    The Tribunal failed to engage in an active intellectual process in relation to the Red Cross letter and analyse the possible implications to the applicant. In view of the fact that the applicant stood surety for his cousin in this matter to report to the army according to the conditions.

e)    The Tribunal wrongly focused on whether the Applicant was a truthful witness rather than to ascertain the issues surrounding an independent document issued by the Red Cross. The fact that it was a separate issue from ascertaining the applicant’s credibility was ignored by the Tribunal.

f)    With regard to the above issue the Tribunal pre-judged a central issue in this matter.

g)    If the Tribunal had placed the proper weight to the Red Cross document it could have come to a different conclusion.

h)    The Tribunal failed to act in a way that is fair and just.

i)    The Tribunal further failed to consider whether the applicant had a well-founded fear of persecution due to his claim related to this document taking his role as a main consideration.

2.    The Tribunal fell into jurisdictional error when the Tribunal did not give proper, genuine and realistic consideration to the country information submitted by the applicant in relation to a politician by the name of Jekath and another colleague of his and their propensity for violence and threats. The Applicant was denied procedural fairness.

Particulars:

a)    Failure to consider a claim that clearly arose before the Tribunal, that being that the applicant was subjected to risk by this person due to his involvement in helping a Tamil political candidate [S], in a local government elections held in 2011.

b)    In view of the fact that the applicant gave evidence that he was victim of political/race persecution as a result of helping a Tamil politician.

c)    The Tribunal reached a wrong conclusion that the applicant will not suffer harm because there is no credible evidence that he was harmed by this person in Sri Lanka. Despite the fact that the applicant provided country information to the Tribunal to demonstrate the violent activities of this person.

d)    Failure on the part of the Tribunal to conclude that the applicant will not be harmed by this politician based on the applicant’s past experience. The Tribunal should have ascertained whether if the applicant returns to Sri Lanka now whether his life will be at risk. Despite the fact that the applicant gave evidence that he was beaten by Sinhalese men and was threatened to stop assisting the Tamil politician.

e)    The fact that the Tribunal decided that he was not harmed in the past does not necessarily mean that the applicant will not be subjected to future risk from him and other Sinhalese associates of this politician.

f)    The Tribunal failed to act in a way that is fair and just.

g)    The Tribunal fell into error in failing to take into account this relevant consideration.

3.    The Tribunal made a jurisdictional error in that it was irrational, illogical and/or unreasonable specifically, the finding that there was no real risk of persecution of the applicant if he returns to Sri Lanka.

Particulars:

a)    The Tribunal was bound by technicalities and strictly followed UNHCR guidelines and ignored the caveat which stated that the UNHCR guidelines were not exhaustive. As a result the Tribunal was not fair and just when it considered the applicant’s plight.

b)    Despite the fact that the Tribunal acknowledged there may well be government related groups such as paramilitary and Sinhalese people who would attack Tamils.

c)    The applicant gave evidence to the Tribunal that he stood surety for his cousin who is suspected by the authorities as an LTTE member, who had breached the reporting conditions to the army.

d)    The applicant arriving as a failed asylum seeker may be investigated and even interrogated by the Sri Lankan authorities to determine whether he is a security threat.

e)    Failure on the part of the Tribunal to correctly ascertain the authority’s fear, those abroad has been LTTE supporters and sympathisers and that they may suspect the claimant as a person under this category.

f)    The authorities would be aware that the applicant’s uncle and cousin were LTTE members/supporters.

g)    As a matter of fact the applicant gave evidence that he assisted a Tamil political candidate in the local election.

h)    The applicant was employed by this local Tamil politician after the election and the applicant was subjected to further threat and harassment by Sinhalese men associated to the successful politician.

i)    In view of the fact that the applicant was arrested, detained and maltreated by the police because he was falsely accused of bank robbery by a close associate of Jekath (the politician).

j)    The Tribunal failed to realistically determine the implications of the applicant’s involvement in a Hindu temple activity which was resisted by the Sinhalese man.

k)    Despite the fact that the Tribunal acknowledged there may well be government related groups such as paramilitary and Sinhalese people who would attack Tamils.

l)    Failure on the part of the Tribunal to recognise that that the applicant had a profile of his own which will attract the adverse interest of the Sri Lankan authorities.

m)    In view of the fact that the Tribunal has also considered the country information submitted by his adviser with regard to human rights abuse and violations in Sri Lanka. Furthermore, the Tribunal accepts such events occur at page (25&26) of the decision record.

4.    The Tribunal committed jurisdictional error of law in its finding that the applicant is not a person to whom Australia has protection obligations under the complementary protection grounds as stated in s.36(2)(a) of the Act.

Particulars:

a)    Failure on the part of the Tribunal to ascertain properly whether that the applicant will be subjected to harassment of Sinhalese men and specially Jekath (the politician) and the Sri Lankan authorities if he returns home.

b)    The applicant gave evidence and provided country information to support his claim in relation to political harassment of Jekath and his people.

c)    Failure on the part of the Tribunal to ascertain what would happen to the applicant in his position of standing surety when his cousin has breached those reporting conditions, if he had to return to Sri Lanka in the foreseeable future.

d)    Failure on the part of the Tribunal to analyse the possible punishment by the authorities for the applicant in not meeting the surety requirements.

e)    Failure on the part of the Tribunal to determine whether the applicant will be subjected to arbitrary deprivation of life, torture or cruel inhuman degrading treatment or punishment as a result of breach of conditions in standing surety.

f)    Failure on the part of the Tribunal to determine whether the applicant will be subjected to arbitrary deprivation of life, torture or cruel inhuman degrading treatment or punishment as a result of a failed political asylum seeker from Australia, Tamil and a suspected LTTE supporter and sympathiser.

g)    Failure on the part of the Tribunal to recognise that that [sic] the applicant had a profile of his own which will attract adverse interest of the Sri Lankan authorities.

h)    Failure on the part of the Tribunal to recognise that the applicant might be charged for a criminal offence and sentence to imprisonment as a result of the breach of the reporting conditions. Despite the fact that the Tribunal accepts the poor conditions and maltreatment in Sri Lankan prisons.

i)    Failure on the part of the Tribunal to rule out clearly whether the applicant falls under the exceptions to Complementary protection s.36(2B).

j)    The Tribunal conflated the issue of Convention consideration and did not address the complimentary [sic] protection.

5.    The Tribunal fell into jurisdictional error when its approach was to focus on the likely outcome of the possible interrogation and detention of the applicant as a failed asylum seeker on his return to Sri Lanka rather than to consider the process of the interrogation to which the applicant would be subjected and the risk that the applicant might suffer serious harm amounting to persecution before being able to convince the authorities that he or his family was not an LTTE member, sympathiser or a supporter. It denied procedural fairness to the applicant.

Particulars:

a)    Failure to consider a claim that clearly arose on the materials before the Tribunal, that being that the applicant might be persecuted by the Sri Lankan authorities, in the course of determining whether the applicant or his family might have LTTE connections.

b)    Despite the fact that the Tribunal at [page 24 of 28] decision record acknowledges the poor human rights record of the Sri Lanka authorities and related agents.

c)    In view of the fact that applicant gave evidence that he was victim of persecution several times by the authorities in relation to his race, religion, suspected LTTE supporter and his involvement in assisting a Tamil politician. Even though his claims were rejected by the Tribunal without proper evidence.

d)    As a matter of fact the applicant gave evidence that he had issues with a notorious politician.

e)    The Tribunal failed to consider that the applicant gave evidence that he had issues with a government informant.

f)    In total, it is unreasonable for the Tribunal to rely on selective country information to support its decision without giving consideration to the applicant’s previous persecution and discrimination that he had suffered. The Tribunal excluded, relevant country information on this area about Sri Lanka, which indicates that human rights violation including abduction, torture in detention and detention without charges.

g)    The Tribunal breached section 420 and 422B of the Migration Act by its failure to accord the applicant substantial justice and the merits of the case and further its failure to act in a way that is fair and just, and thereby denying the applicant natural justice.

6.    Tribunal fall into jurisdictional error when it failed to consider a very important claim made by the applicant that on 25 April 2012, evening the CID came to the applicant’s house and informed his mother that the CID is going to kill the applicant. This is in regards to the CID’s second visit. The Tribunal denied procedural fairness to the applicant.

Particulars:

a)    Failed to conduct the review according to s.420 of the Migration Act 1958.

b)    The Tribunal failed to provide a fair hearing under s422B.

c)    The Tribunal did not rebut that the CID visited the applicant’s home.

d)    The Tribunal failed to invite the applicant to comment on or respond to this information.

e)    The Tribunal fell into jurisdictional error when it failed to take into account relevant consideration and give proper weight to any information to support the applicant’s case.

7.    The Tribunal fell into jurisdictional error when it failed to accept the submission by the adviser that the Attorney General’s office of Sri Lanka could not be relied on a source of country information on issues related to treatment of failed asylum seekers. It is unreasonable and denied procedural fairness to the applicant.

Particulars:

a)    Despite the fact that the Tribunal acknowledges at (page 26 of 28) that the Sri Lanka government may try to down play or deny human rights violations taking place in Sri Lanka but sees no reason for the Attorney General’s Department of that country to falsely state no returnees are receiving custodial sentences.

b)    The Tribunal failed to understand that the Sri Lankan AG’s office is part of the Sri Lankan government’s machinery.

c)    The Tribunal failed to understand that the AG’s office is not an independent department.

d)    The Tribunal did not understand the workings of the Sri Lankan government and as a result came to the wrong conclusion in its decision.

e)    The Tribunal in reaching this conclusion did not act in a way that is fair and just.

21    In the course of the primary judge’s reasons, she records that submissions were made on behalf of the Minister and the appellant as to the effect of the decisions of this court in SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 (per Logan, Robertson and Kerr JJ) (SZTAP) and Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) ALD 507 (per Griffiths J) (SZTQS). Although not raised under the appellant’s (rather lengthy) grounds of appeal to this Court, the appellant in his oral submissions raised the question of the correctness of the treatment by the FCCA of that decision. As the appellant is self-represented, I asked Mr Glavac, who appeared on behalf of the Minister, whether the Minister opposed consideration of that decision in the context of the facts of the present case. Quite properly within his role as acting for the model litigant, he indicated that he did not. Accordingly, below I address as the final ground of appeal the correctness of the primary judge’s treatment of these matters.

22    Before this Court the appellant relies on the following grounds:

1.    The Respondent denied me procedural fairness, failed to consider the country information that I submitted and the AAT decision was irrational, illogical and unreasonable.

Particulars

I still rely on the grounds, particulars and submissions provided previously to the Federal Circuit Court.

The Federal Circuit Court Judge erred in the judgment as the Judge failed to find that the Respondent erred in law when the Respondent had reviewed my review application.

23    The FCCA carefully reviewed the Tribunal’s decision and rejected each of the grounds of appeal before it.

3.    CONSIDERATION

24    As I have noted above, it is not the role of this Court to conduct a merits review of the decision of the Tribunal. Rather, the task is to consider whether error on the part of the FCCA has been established. This in turn depends on a consideration of the appellant’s grounds of appeal.

3.1    Ground 1: Failure properly to consider the ICRC document

25    The appellant contends, in summary, that the Tribunal failed to give proper consideration to a document said to have originated from the ICRC which was annexed to the appellant’s statutory declaration. The document itself is one page long and is entitled “Detention Attestation”. In it, the ICRC attests that according to its records a person of M’s name was born on a certain date at a certain place, that he was visited on specified dates and places by ICRC delegates on two occasions and that, “according to the authorities”, he was released on 30 September 2011 from a rehabilitation and training centre in the Vavuniya District.

26    The appellant gave nine separate particulars of this ground of appeal. In essence, those grounds assert that the Tribunal failed to give proper weight or any weight to the ICRC document and wrongly focused on whether the appellant was a truthful witness rather than ascertain the correctness of the independent document issued by the ICRC. The appellant asserts that in so doing the Tribunal failed to act in a way that was fair and just.

27    In order to understand the context of the Tribunal’s reasoning in relation to this document, it is appropriate to note the Tribunal’s three major findings concerning the credit of the appellant.

28    First, the Tribunal found that the evidence given by the appellant about M’s release was inconsistent. It noted that in his statutory declaration of 22 September 2012 the appellant had said that when M was released he went into hiding. However, in evidence before the Tribunal, the appellant said that after his release, M stayed at home until late 2011 and then returned to live with his family in another village, but that he subsequently returned to his home several times, including to attend a wedding. The Tribunal considered that these inconsistencies tended to impugn the appellant’s credibility.

29    Secondly, the Tribunal did not accept the appellant’s evidence about M’s conditions for reporting to the Sri Lankan army. The appellant told the Tribunal that upon M’s release on 30 September 2011, M was required to report to the army six months later and that the appellant was M’s guarantor. Even so, the appellant said that he did not know the date on which M was required to report (he was only told by M that it was “in April”) and left it to M to report to the army, despite the appellant’s exposure to prosecution if M failed to turn up. The appellant also said that he did not later contact M to confirm whether he had reported to the army because the appellant had been busy working. The Tribunal did not accept this explanation as credible.

30    Thirdly, the Tribunal found that during the course of the hearing the appellant had changed his evidence about M’s whereabouts on 23 April 2012. His initial evidence was that on 23 April 2012, M’s mother had told the appellant that M had been taken in by the CID for questioning. The Tribunal then put it to the appellant that if M had been taken away, then the appellant would reasonably be expected to have fled or gone into hiding on that day. Instead, the appellant’s evidence was that he continued with his normal work routine. When confronted with this position, the appellant changed his evidence and said that he had not been told that M had been taken into custody by the CID but that M had voluntarily gone to report to the army. The Tribunal rejected that explanation.

31    Following the conclusion of the hearing, the Tribunal received written submissions from the representative of the appellant going to these matters of credit. It considered the submissions put and maintained its view that the appellant’s evidence given as summarised above was unreliable.

32    Turning now to the ground of appeal, as noted, I have considered the content of the ICRC document. It provides limited information about a person of M’s name setting out his date of birth, the location of where he had been detained, date when visited by the ICRC delegates, and the date of his release.

33    The document does not on its face corroborate the assertion made by the appellant that the named person was his cousin or any of the other matters set out in the Tribunal’s decision at [117] and [118] (quoted in [14] above).

34    The learned primary judge noted at [53] that the Tribunal had concluded that the appellant was not a witness of truth and that his account of events upon which his protection claims were based was false. The primary judge found that the Tribunal had comprehensively rejected the appellant’s claims; to have had a cousin who was detained on suspicion of involvement with the LTTE; that the international community, including the ICRC had assisted in procuring M’s release; that the appellant had guaranteed his cousin’s attendance or that the CID had come to his house in April 2012 looking for M or the appellant. The primary judge concluded that it was open for the Tribunal to take this approach because, where a party’s credibility is so weakened, corroborative evidence may be found to be of no weight (at [56]).

35    In my view, it was open to the Tribunal to reach the conclusion that it did as to the appellant’s credibility. Credibility findings are matters for the Tribunal; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]. Having reached its conclusion on credit, the purported corroborative document could legitimately be disregarded, primarily because in fact it provided no information directly corroborative of the appellant’s version of events and, secondly, because in light of credit findings made, a purportedly corroborative document might be found to be of no weight; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ. Accordingly, I agree with the conclusion reached by the primary judge that ground 1 should be dismissed.

3.2    Ground 2: Proper consideration of country information submitted about the politician J

36    The appellant contends in ground 2 that, in summary, the Tribunal did not properly consider country information given about J and his colleague, and their propensity for violence.

37    The Tribunal found at [118] that because the appellant was not a witness of truth, it disbelieved claims that he had assisted his employer, S, in elections or suffered harm as a result. That finding was not based on inconsistencies in the appellant’s version of events concerning his employer, but on the more general basis that the appellant could not be accepted as a reliable witness, given what the Tribunal considered to be patent inconsistencies in his story.

38    In my opinion, such reasoning was within the domain of the Tribunal and, as noted above, in relation to ground 1, was open to the Tribunal on the material before it. The primary judge rejected the appellant’s contentions on the basis that the Tribunal had received country information, including country information submitted by the appellant, but rejected the appellant’s contentions on the primary basis that it did not accept that the appellant had been engaged in political matters in the form of helping his employer S, a Tamil, in an election.

39    In my view, it was open to the Tribunal to conclude that country information provided in relation to J was irrelevant to the application made by the appellant. I agree with the decision of the primary judge that ground 2 should be dismissed.

3.3    Ground 3: Irrational, illogical and/or unreasonable finding that there was no real risk of persecution of the appellant

40    Ground 3 pleads that the Tribunal’s finding that there was no real risk of persecution of the appellant if he returned to Sri Lanka was irrational, illogical and/or unreasonable. The appellant relies on 13 separate particulars in relation to this ground. Eight of those (set out in particulars (c), (e)-(j), (l)) concern the personal circumstances of the appellant. As noted above, the Tribunal rejected the appellant’s claim as to his particular personal circumstances, such as his involvement with M, the LTTE, political work and Hindu festivals. It found that his protection status should be addressed solely on the basis that he was a single male Tamil Hindu who attended school until year 11, had lived in his home region and was employed as a truck driver and sales assistant while in Sri Lanka. The appellant has not demonstrated error on the part of the Tribunal in this regard.

41    The remaining five particulars to ground 3 ((a), (b), (d), (k), (m)) involved the Tribunal in assessing the appellant’s exposure to persecution based on country information, which included country information submitted by the appellant. The Tribunal had extensive regard to the country information provided to it, and then balanced that information with other country information provided by the appellant. It concluded that there was no real risk of persecution of the appellant. The primary judge noted that the authorities indicate that the weight to be given to country information is within the domain of the Tribunal and is not a matter for the Court on appeal; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 at [63].

42    The primary judge dismissed the third ground raised on two bases. First, that the Tribunal’s comprehensive adverse credibility findings were rational and open to it on the evidence, and secondly, that otherwise the findings made by the Tribunal on the basis of the information available to it (including country information) were open to it and that the ground of appeal substantively called for a merits review which the FCCA was not at liberty to undertake.

43    I consider that there was no error in the primary judge’s reasoning in this regard and accordingly dismiss ground 3 of the appeal.

3.4    Ground 4: Jurisdictional error in failing to find the appellant was entitled to complementary protection

44    The appellant relies in ground 4 on asserted jurisdictional error on the part of the Tribunal as a result of a failure to make a finding of entitlement to complementary protection pursuant to subsection 36(2)(aa) of the Act. Many of the particulars given in support of this ground (of which there are ten) in part or in whole refer to subjective matters as to the appellant’s own circumstances that the Tribunal had rejected as untruthful (see particulars (a) – (h)). The balance concerned the Tribunal assessing the appellant’s exposure to harm that might be visited upon him as a result of being a male Tamil Hindu man from his home region.

45    The primary judge firstly rejected the fourth ground on the basis that the Tribunal had identified country information relevant to the risk of harm to the appellant because he is a Tamil Hindu man from a particular location who left Sri Lanka illegally, and will return there as a failed asylum seeker from Australia. Having considered the materials, the Tribunal concluded that the risk of harm to the appellant would be remote if he were to return to Sri Lanka.

46    The primary judge found that those findings were open to the Tribunal on the evidence and material before it and for the reasons given by the Tribunal, and that accordingly the ground was not made out.

47    In my view, the Tribunal had regard to country information available to it in considering these issues and duly weighed up the relevant considerations. I agree with the learned primary judge’s conclusion that the complaints made in this regard have not been made out.

48    The appellant also asserted in its particulars (at (i)) that the Tribunal had failed to rule out clearly whether the appellant falls under the exceptions to complementary protection under subsection 36(2B).

49    Subsection 36(2B) supplies part of the statutory definition of the term “real risk” of “significant harm” set out in subsection 36(2)(aa). It lists three exceptions where, in the event that there is a finding that there is a real risk that a non-citizen will suffer significant harm, the Minister may nonetheless determine that there is no such risk. The exceptions are where it would be reasonable for the non-citizen to relocate to an area of the country where there would not be such risk, where the non-citizen could obtain protection from the risk from an authority of the country or where the real risk is suffered by the population of the country generally, and not personally by the non-citizen.

50    In the present case, the Tribunal found that there was not a real risk of harm at all. Accordingly, as the primary judge correctly noted at [77], subsection 36(2B) was not engaged.

51    Accordingly, I find that there is no basis for ground 4 and dismiss it.

3.5    Ground 5: Failure to consider types of harm upon the appellant’s return

52    In his fifth ground of appeal the appellant asserts that the Tribunal (and primary judge) erred when considering the likely harm to be suffered by the appellant upon his return to Sri Lanka. In particular, he asserts that the Tribunal focused on the “likely outcome” of the interrogation and detention, but failed to focus on the process of interrogation to which he may be subjected. The ground of appeal identifies that the harm from this interrogation might take place “before being able to convince the authorities that he or his family was not an LTTE member, sympathiser or a supporter”.

53    The difficulty for the appellant with this ground is that the Tribunal rejected, as a matter of fact, the premise that the appellant had been involved in or had an imputed association with LTTE activities, and rejected that he was, or ever had been, wanted by the authorities for that reason. Accordingly, the Tribunal considered the likely treatment that the appellant would receive at the hands of the authorities on the basis that he was simply a Tamil Hindu man from a specific village in Sri Lanka who had left illegally and was returning as a failed asylum seeker. On that basis, there was no occasion to consider the hypothetical treatment that he might have received, had he been suspected of LTTE involvement.

54    The primary judge (at [80]) noted the Tribunal’s essential findings, which rejected the appellant’s claims of involvement in, or imputed connection with the LTTE involvement, and found that it was open to it to rely on the country information that it had cited in support of its conclusion that the appellant was not in danger of suffering harm within the statutory definition.

55    I can see no error in the reasoning of the primary judge. Accordingly, I dismiss this ground of the appeal.

3.6    Ground 6: Failure to consider an “important claim”

56    Ground 6 asserts that the Tribunal failed to consider the appellant’s claim that on 25 April 2012 the CID came to his house and informed his mother that it was going to kill him, and failed to give him an opportunity to present his case in relation to that claim.

57    However, as noted in [14] – [15] above, the Tribunal rejected the entirety of his evidence in relation to his cousin. It rejected that he had a cousin who was detained from 2009 on suspicion of involvement with the LTTE, it rejected that the international community, including the ICRC, procured his release and it rejected that the CID came to the appellant’s home in April 2012. It cannot be said that this matter was not raised with the appellant, as the Tribunal carefully records in its decision the inconsistencies about his version of events that were put to him at the hearing. Further, the Tribunal afforded the appellant’s representatives the opportunity to file further written submissions in relation to credit issues, which it then took into account.

58    The primary judge noted that those findings were open to the Tribunal. She further noted that it was not necessary for the Tribunal to put each inconsistency in his evidence to the appellant before arriving at its conclusion adverse to his claims; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

59    I can see no error in the conclusion reached by the learned primary judge. Accordingly, I dismiss ground 6.

3.7    Ground 7: Error in accepting certain country information

60    Ground 7 contends that the Tribunal fell into jurisdictional error when it rejected a submission that country information from the office of the Attorney General of Sri Lanka should be rejected as a source. The Tribunal determined that it could receive some information from that source as reliable, and noted reports supplied by the Department of Foreign Affairs and Trade (DFAT) were also relied upon as the basis for its conclusion.

61    In essence, this ground amounts to little more than the appellant disagreeing with a conclusion reached by the Tribunal concerning the merits of its claim. The primary judge considered that no jurisdictional error had been demonstrated arising from this ground. I agree with that conclusion, and accordingly dismiss ground 7 of the appeal.

3.8    Ground 8: The decision in SZTAP

62    At the conclusion of the hearing in the FCCA, the matter was adjourned pending the publication of the reasons for judgment by the Full Court in SZTAP. The primary judge gave the parties an opportunity to make submissions in relation to its applicability. As noted above, the Minister accepted that in this appeal the same opportunity should be afforded to the appellant, and accordingly, the appellant made oral submissions on the issue. Accordingly, an additional ground of appeal arises from that case.

63    In short form, the issue is whether, by reason of the country information available to the Tribunal, the obligations imposed by section 425 of the Act required that the appellant should have been invited to respond specifically to the issue of whether or not he would obtain bail pending determination of any penalty that he would receive for leaving Sri Lanka illegally.

64    This ground arises from the reasoning of Griffiths J in SZTQS and from the subsequent decision of the Full Federal Court SZTAP. The relevant background is as follows. The Tribunal noted that in a report dated 4 March 2013, DFAT provided the following information about returnees being held on remand:

Remand in this sense means physical remand as in the Australian legal context. Those held on remand are held in a prison. For those returning to Colombo International Airport, they would be remanded at the Negombo Prison’s Remand Unit.

Post’s experience with returnees from Australia is that persons are arrested by the Sri Lanka Police Service Criminal Investigation Department (CID) after being processed back into Sri Lanka by the Department of Immigration and Emigration. They are held in police custody at the CID Airport Office throughout the investigation period, which can last up to 24 hours under relevant legislation.

They are then produced before a magistrate and the Magistrate’s Court will determine whether the person is to be released on bail, to appear before the court at a later date, or is remanded into custody. If a person needs to be held for more than 24 hours as a result of a Magistrates Court not sitting, such as when a person arrives during a weekend or public holiday, arrested persons are transferred to the nearby Negombo Prison (Remand Section) until the Magistrates Court is in session.

We understand the current process for bail is that all persons are granted bail based on personal recognisance (on their own responsibility), with the requirement for a family member to stand as a guarantor. There is no payment required for bail.

However, we note that the court may decide not to grant bail if the returnee is found to be a facilitator/organiser of people smuggling, or the court may grant specific bail conditions if the person is a repeat offender.

65    The hearing before the Tribunal was conducted on 9 April 2013, and so this DFAT report was relatively recent. In pre-hearing submissions the appellant’s representatives had addressed the question of the harm likely to be suffered by the appellant on return to Sri Lanka.

66    In this appeal, the Minister drew attention to [113] and [124] of those submissions. Paragraph 113 provides:

Country information above indicates that returned failed asylum seekers are interrogated, detained in a prison on pre-trial remand awaiting a bail hearing. According to the Sydney [M]orning Herald report, failed asylum seekers are ‘interviewed into the evening and overnight by uniformed Sri Lankan police and the criminal investigation department’ before being detained in a prison awaiting a court appearance. The report continues: ‘Some [failed asylum seekers returned from Australia] spend up to a fortnight in jail, while others are released within days’. While the length of imprisonment on remand may be ambiguous, the promise of being detained is not.

(citations omitted)

67    Paragraph 124 stated:

Anecdotal evidence regarding the substandard prison conditions in Sri Lanka is supported by a vast body of condemning international commentary, including the ACAT Report: [there follows details of deficiencies in the prison conditions].

68    Further, in a supplementary submission provided to the Tribunal on 6 September 2013 the appellant’s representatives relevantly said:

1.    On 28 August 2013 the Applicant was provided with an opportunity to comment on recent country information published by the Department of Foreign Affairs and Trade (‘DFAT’) in relation to returnees being prosecuted under the Immigration and Emigration Act for illegal departure (‘DFAT report’).

2.    In this regard, the Applicant questions the impartiality of the DFAT report given the source quoted by DFAT is the Sri Lankan Attorney-General’s Department.

3.    Secondly, the Applicant is at risk of punishment by the authorities more severe than the standard fine for his illegal departure based on the Criminal Investigation Department’s (‘CID’) allegations of his involvement with [M] (a Liberation Tigers of Tamil Eelam supporter) and his evasion from the CID (most recently when they visited his family home in April 2012). As such the Applicant maintains he is at risk of serious and/or significant harm if returned to Sri Lanka based on his illegal departure.

69    The Minister’s first submission in the hearing before this Court was that the issue of whether bail would be available to the appellant was raised in the passages that I have quoted above and demonstrate that he and his representatives were clearly aware of, and addressed the question of his potential imprisonment upon return from Australia, but did not raise any difficultly in meeting the bail conditions that might be imposed. Secondly, the Minister submitted that the decision in SZTQS was to be distinguished from the facts in the present case in that a positive finding that a family member would be likely to act as a guarantor was not necessary. It was sufficient that the Tribunal had made a finding in broad terms to the following effect (at [131]):

Depending on the day on which the returnee arrives at the airport in Colombo, that person may be briefly detained in remand before being brought to the court. In the Tribunal’s view, country information indicates that for departing the country illegally, the returnee will be granted bail and will, eventually, receive a fine.

70    As to the first point, it might be noted that the supplementary submission (quoted in [68] above) specifically addressed the possibility that the appellant might be arrested on his return, and held while investigations were undertaken by the authorities. The submissions also addressed the appellant’s concerns as these investigations related to the appellant’s involvement with M and his concerns that the CID would pursue him as a person of interest. The supplementary submissions did not raise any concerns about his ability to apply for and, upon the provision of surety by a family member, obtain bail. During the course of the appeal, in oral submissions, the appellant reiterated that the CID would come looking for him because of the suspicion that they have as to his connection with LTTE.

71    The supplementary submission filed before the Tribunal, and the appellant’s more recent submission on appeal, reinforce the fact that the appellant’s position has consistently been that the only concern that he has on his return arises from an imputed suspicion that he is involved with M and the LTTE. No additional concern was raised that he would otherwise be unable to achieve bail or obtain the assistance of a family member to act as his surety. For the reasons that I have summarised above at [14] – [15] it is plain that the Tribunal rejected, as a matter of fact, that the CID harbours any suspicions concerning the appellant and his relationship with M or the LTTE. Accordingly, on a factual level, it does not appear that a failure under section 425 of the Act has arisen.

72    Subsection 425(1) of the Act provides:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

73    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) approved the following statement by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 (SZBEL at [32]):

It is a fundamental principal that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

74    The question was raised in SZTAP at [66] where the appellant submitted that the Tribunal, having found that bail in Sri Lanka is routinely given on the accused’s own recognisance although a family member is also required to give surety, failed to consider the prospect that the appellant would be confined to prison for a prolonged period if bail was not granted to him. There was no consideration by the Tribunal of whether surety would be provided or if money were required, whether it could be paid.

75    Justices Robertson and Kerr found (Logan J concurring) that, “at a general level of abstraction” (at [75]) there was a similarity between SZTQS and the case before it, in that in both cases the Tribunal noted that bail is routinely given upon a family member providing surety. In both cases, the Tribunal did not specifically put to the appellant an issue as to whether there was in fact a family member who would provide that surety.

76    However, in SZTAP the Full Court distinguished SZTQS:

[77]    SZTQS is but an application, on particular facts, of a feature of the review jurisdiction exercised by the Tribunal under the Act, described in SZBEL. It is not necessary to consider whether or not SZTQS was correctly decided. Rather, the pertinent feature highlighted by SZBEL is that, in each instance, the Tribunal exercises a review jurisdiction in respect of a particular decision in respect of which the Minister (or a delegate) will have given particular reasons. In our opinion, SZTQS was, of necessity, fact specific.

[78]    In SZTQS, part of the background circumstances was that SZTQS had, before he left Sri Lanka, been taken to the police station and, two days later, to the local courthouse where his mother paid bail money for his release. By reason, in part, of those events and by reason of his ethnicity as a Tamil, SZTQS feared that he would be arrested again. SZTQS had also given a statutory declaration that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally and without permission.

[79]    However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.

77    The present case shares common elements with SZTAP and may be distinguished from SZTQS. Nowhere in the Tribunal’s reasoning in the present case did the Tribunal signify that it was critical that the appellant could apply for and, upon the provision of surety by a family member, obtain bail. In this sense, as noted in SZTAP at [79], the issues framed by the Tribunal as important did not include obtaining bail.

78    Further, and significantly, in the present case it is apparent that the issue of bail in the context of the DFAT report of 4 March 2013 was squarely raised by the Tribunal (see [64] above). It was addressed in terms by those representing the appellant in his supplementary submissions filed after the hearing (see [68] above).

79    The only issue about the potential for prolonged detention upon his return that the appellant wished to raise was that he was in danger of a punishment “more severe than the standard fine for his illegal departure” based on this involvement with M and his evasion of the CID. As noted above, the Tribunal rejected all of those claims. The appellant had ample opportunity to submit that he feared detention for a prolonged period because of an inability to obtain surety, but he did not. In this connection, it appears to me that the Tribunal had satisfied the fundamental principle that the party affected be given the opportunity of ascertaining the relevant issues: SZBEL at [32].

80    Accordingly, in my view, the relevant “issue” arising in relation to the decision under review, was sufficiently raised by the Tribunal. The appellant had an ample opportunity to respond to it, and did so in the terms set out above. It is not necessary for present purposes to decide whether the terms of subsection 424A(3)(a) of the Act would, in any event, relieve the Tribunal of the obligation to do so. In this sense, also, the present facts have a closer resemblance to SZTAP (at [81]) than SZTQS.

81    The primary judge in the present appeal formed the view that the decision in SZTAP did not give rise to any ground of appeal from the decision of the Tribunal that warranted it being overturned. For the reasons set out above, I agree with that conclusion.

4.    COSTS

82    At the hearing, an affidavit of Natasha Simone Blake, lawyer, was read in which the basis was supplied for the lump sum amount of costs that the Minister has incurred in the conduct of the appeal. In essence the evidence indicates that the total costs incurred, including the costs of the appeal, will justify an award of costs of between $3,300 and $3,800. These amounts are calculated on the basis of total costs expected to be incurred following disposition of the matter being $5,120 and allowing for a discount for taxation of between 65% and 75%.

83    At the hearing, the appellant accepted that in the event that he should lose his appeal he would be liable for costs.

84    I determine that the award of costs should follow the event, and that the appellant should pay the Minister the sum of $3,500 for the appeal.

5.    DISPOSITION

85    For the reasons set out above I make the following orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the costs of the appeal, which I assess to be $3,500.

Associate:

Dated:    4 October 2016