FEDERAL COURT OF AUSTRALIA

ARY15 v Minister for Immigration and Border Protection [2016] FCA 1211

ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed with costs, to be assessed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dated 26 October 2015 (ARY15 v Minister for Immigration & Anor [2015] FCCA 3145). In the Federal Circuit Court the appellant sought review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal)), which had in turn affirmed the decision of a delegate of the Minister to refuse the applicant a protection visa under the Migration Act 1958 (Cth) (the Act). The Federal Circuit Court dismissed the appellant’s application, and refused to set aside the decision of the Tribunal as the appellant sought.

2    It is convenient to set out the background facts before turning to the issues in this appeal.

Background

3    The appellant is a citizen of Sri Lanka who arrived in Australia on 25 July 2012 as an unauthorised maritime arrival. He lodged an application for a protection visa on 26 November 2012. The appellant claimed that he feared being abducted or killed if he were to return to Sri Lanka, on the basis that he was a Tamil, and that he was imputed with political association with the Liberation Tigers of Tamil Eelam (LTTE). In summary, the appellant submitted that:

    his fears derived from the detention of his cousin in 2007 for 10 months on suspicion of being associated with the LTTE;

    his cousin was detained following an incident which occurred in 2006 where a massacre occurred at an aid organisation where his cousin was working and 17 of his cousin’s colleagues were shot dead;

    his cousin was released and cleared, however the Criminal Investigation Department (CID) continued threatening to kill the cousin;

    his cousin hid in the appellant’s house until leaving for Australia in 2008. Once the appellant’s cousin left Sri Lanka, the CID continued to question the appellant and his family on the whereabouts of his cousin and tried to force the appellant to make his cousin return to Sri Lanka.

4    A delegate of the Minister refused the appellant’s visa application on 21 October 2013. At the review of that decision in the Tribunal the appellant was assisted by a Tamil interpreter and represented by a registered migration agent (who appeared by telephone).

Reasons of the Tribunal

5    On 17 April 2015, the Tribunal affirmed the decision of the delegate of the Minister to refuse the appellant’s application for a protection visa. Key findings of the Tribunal included:

    Although the Tribunal accepted that the appellant’s cousin was arrested on suspicion of being involved with the LTTE, it understood that the cousin was released and cleared of charges. The Tribunal did not accept that the appellant was questioned and threatened by the CID or authorities, or that the cousin was in hiding until his departure.

    There was considerable interrelationship between the appellant’s claims regarding his race, political opinion and membership of particular social groups. In essence this was because of his Tamil ethnicity, his imputed political opinion of support for the LTTE and opposition to the Sri Lankan government because he is a Tamil, his status as a failed asylum seeker, his association with his cousin, and his illegal departure from Sri Lanka.

    Notwithstanding the appellant’s claims, country information indicates that the security and humanitarian situation in Sri Lanka has greatly improved since the end of the civil war, and there was no longer a need for group-based protection mechanisms or the presumption of eligibility for Sri Lankans of Tamil ethnicity.

    The Tribunal did not accept that the appellant had a profile as having a significant role in relation to post-conflict Tamil separatism or renewal of hostilities, or was at risk in that regard. This was because the Tribunal did not accept that the appellant is or was suspected of being associated with the LTTE, and further did not accept that his cousin’s 2007 arrest put him at risk or raised his profile to one of interest.

    While the Tribunal accepted that there was evidence that Sri Lankans returning to Sri Lanka had reportedly suffered torture and abuse from the authorities, those cases involved returnees who had some reasonably substantial form of connection with the LTTE or were suspected of such linkages (which the Tribunal did not consider the appellant to have or be).

    Although the Tribunal noted that the appellant had apparently departed Sri Lanka illegally, and could face charges in relation to this illegal departure on his return to Sri Lanka, in most cases returnees had been granted bail on personal recognisance by the magistrate, and fined up to 50,000 rupees. The Tribunal did not accept that such a fine would amount to serious harm. This was because the appellant would be able to pay the fine, or his family would be able to help him pay the fine. Further, the Sri Lankan departure laws are laws of general application, and the enforcement of those laws do not constitute persecution.

    In relation to the application of s 36(2)(aa) of the Act the prospect that Australia might owe complementary protection obligations to the appellant, the Tribunal was not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm.

Decision of the Federal Circuit Court

6    In the Federal Circuit Court of Australia the appellant relied on the following grounds of review:

Ground one

The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.

Particulars

The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane.

Ground two

The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424A and 424AA.

Particulars

The Respondent did not raise/put to me in writing part of [sic] parts of the adverse decision for me to comment in writing.

7    The primary Judge delivered an ex tempore judgment on the day of the hearing.

8    In relation to the first ground the primary Judge said:

9.    When one looks at the decision by the Tribunal, one can see that the Tribunal did look at the complementary protection aspect. The Tribunal, in looking at that aspect, gave its reasons from paragraphs 69 through to 71. In particular, the Tribunal looked at the aspect of illegal departure. At paragraph 73, the Tribunal said:

In considering the situation for the applicant upon his return, having regard to the fact that the applicant is likely to be questioned at the airport, possibly detained for a brief period in a remand centre and fined, the Tribunal has had regard to the definition of “significant harm” in section 36(2A). It requires that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

9    In summary, his Honour noted that the Tribunal:

    looked at country information which indicated that returnees to Sri Lanka were not mistreated (at [10]);

    did not accept that simply being questioned at the airport, being charged and then bailed and asked to pay a fine or held in remand, constituted “significant harm” (at [11]);

    found that the appellant would be liable to pay a fine and that this did not constitute significant harm (at [12]);

    accepted that the appellant would be remanded in conditions which were overcrowded, cramped, uncomfortable and unsanitary for up to two weeks, but that this did not amount to “significant harm” (at [12], [13]);

    did not accept that any questioning at the airport, bail conditions, possible detention on remand, prison conditions or subsequent contact or monitoring visits would result in arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment (at [14]).

10    It followed that the Tribunal did consider, in full, the complementary protection obligations that Australia owed, and did consider the allegedly “degrading” conditions that he may be subjected to if he had to spend a period of time in remand (at [16]). His Honour continued:

17.    The problem for the Applicant is that he has not been in Sri Lanka since July 2012. The country information, that the Tribunal has, is far more up to date than what the Applicant remembers and there have been a number of reports done by international agencies, as the Tribunal noted, that speak of what the conditions now are. There is a lack of evidence to show that there has been any error in the reasoning of the Tribunal.

11    In relation to the second ground of review the primary Judge stated:

21.    What is clear when one does go through the decision is that there is very little in the material that was of such a nature. As was pointed out by the solicitor for the Respondent, it would seem paragraph 20 of the reasons may have been the only such information. In that paragraph it says this:

… While the applicant claimed at hearing he helped hide the cousin by taking him on his bike to other places to hide when the authorities were looking for him, he did not mention this in his statement or at interview …

12    His Honour noted that this issue was put to the applicant pursuant to s 424AA of the Act, and that the appellant responded (at 22]). His Honour continued:

25.    They did put that matter to the Applicant. He gave an answer. The answer was not accepted. The statement by the Tribunal that “it considers actually taking his cousin on a bike and hiding him being a key detail of the claim which is reasonable to expect it would have been mentioned in the claims” is a conclusion that the Tribunal was allowed to make because of the fact that it had put the contrary to the Applicant.

…

27.    In fact the Applicant was asked by me, a number of times, what matters could have been or should have been put to him. He could not think of anything except for the fact of country information that said that there are many documents from Sri Lanka that are fraudulently created and he said that that wasn’t put to him. But it seems, on my reading of the report that certainly was put to him even though, as I say, that was not something that needed to be put to him pursuant to s.424AA.

13    His Honour also observed that, while not a ground of the application before him, most of the appellant’s submissions to the Federal Circuit Court concerned the following statement of the appellant:

My center [claim] for protection visa includes my cousin’s suspected political profile. My cousin is in Australia and the RRT should have invited him for a hearing to provide evidence, as a witness, to assess as to whether I am credible in respect of my protection visa. I have attached herewith the proof of my cousin’s adverse experience of persecution in Sri Lanka. The RRT failed to consider complementary protection obligations Australia owed to me,

14    In relation to this claim his Honour said:

31.    However, it does seem as though any so called persecution occurred after the cousin left Sri Lanka. So whilst the cousin may have been able to affirm all of his experiences none of that would have assisted the Applicant.

32.    The fact is that the Tribunal did accept that the cousin had been the driver, had picked up dead bodies and returned them to their homes, had been detained for up to 10 months, was released without charge and then some months after that did make his way to Australia where he now has a protection visa.

33.    The only aspect of the application relating to the cousin was that the Tribunal did not accept that the family had to hide the cousin for those months between his release and his eventual escape to Australia.

34.    When one had a look at what it was that the Tribunal had said, it would only have assisted in the fact finding matters as to what the Applicant’s position was vis-à-vis his cousin. Even assuming that the cousin had been able to come and give evidence and such evidence was that he was hiding for all that time until he escaped and that the Applicant helped him, that would not have, in my view, affected the ultimate question as to whether the decision maker or Tribunal was satisfied that the Applicant was owed complimentary protection by Australia.

35.    Even if such a thing had happened, one has to look at what was the possibility or probabilities of the Applicant facing harm if he were returned to Sri Lanka and I’ve already gone through what the Tribunal has said about that.

36.    The proper way to approach the question as to whether this aspect amounts to a jurisdictional error, is to assume that the evidence is that the cousin was hidden by the Applicant all that time. If one assumes that, does this mean that there was insufficient evidence for the Tribunal to be satisfied that the Applicant did not meet the complimentary protection criteria?

37.    In my view there was certainly sufficient evidence for that view to still be the open view. If that be the case then it seems to me that there was no reason for the Tribunal to have called the cousin. Even if it were an error not to have called the cousin, however one comes to that view, it was not such that it is a jurisdictional error.

38.    Having looked at the matter as a whole, I do not see that this aspect of the matters shows that the Tribunal has fallen into jurisdictional error. Having a look at the matter as a whole, as I do because ARY15 is unrepresented, I cannot see that there is any jurisdictional error made out.

Application for adjournment of Federal Court proceedings

15    This matter was listed for hearing in the Federal Court on 1 March 2016. The appellant at that time requested that the matter be adjourned for medical reasons. This request was permitted by the Court and the matter was listed for hearing on 7 July 2016.

16    On 4 July 2016, the appellant filed an additional affidavit requesting that the hearing listed for 7 July 2016 be adjourned, again for medical reasons. The appellant stated that he experienced trauma in Sri Lanka before departing to Australia as a refugee and was suffering from “post traumatic problems”.

17    When the matter was called on 7 July 2016 the appellant appeared in person. After hearing submissions from the appellant (through his interpreter) in support of his application for adjournment, I refused that application on the basis that:

    the appeal had been adjourned already on the basis of the appellant’s alleged mental health issues and no steps had been taken to address this issue so far as the hearing of the appeal was concerned; and

    the appellant presented as healthy and able to continue with the hearing.

Appeal

18    The grounds of this appeal (as filed on 6 November 2015) were as follows:

Grounds of appeal

The Federal Circuit court failed to find, in respect of the Respondent, on 26 October 2015, that the RRT declined its jurisdiction to me.

The particulars are: Ground one

The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.

Particulars

The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane.

Ground two

The Respondent made an error in law, with the error being a jurisdictional error, by not complying with sections 424A and 424AA.

Particulars

The Respondent did not raise /or put to me in writing part or parts of the adverse decision for me to comment in writing.

My primary claim for a protection visa includes my cousin’s suspected political profile. My cousin is in Australia and the RRT should have invited him for a hearing to provide evidence, as a witness, to assess as to whether I am credible in respect of my protection visa. I have already attached with the Federal Circuit court application proof of my cousin’s adverse experience of persecution in Sri Lanka and he was granted protection by the Australian government.

Orders sought

1.    The RRT decision and the Federal Circuit Court judgement be quashed

2.    To determine my case according to law

3.    A new RRT hearing

19    The respondent filed submissions on 23 February 2016. No written submissions were filed by the appellant. The respondent argued that the grounds of appeal claimed by the appellant simply repeated the grounds raised before the Federal Circuit Court. The respondent also argued that the appellant had not identified how the Federal Circuit Court had allegedly fallen into error.

20    The respondent also filed submissions specifically addressing the grounds of appeal raised in the notice of appeal before the Court.

21    At the hearing before me the appellant submitted orally that his sister and brother-in-law obtained refugee status, primarily on the basis of evidence given by the appellant’s cousin. I note that, at the hearing, the appellant referred to his cousin as “his brother”. In particular the appellant submitted:

Your Honour that – nobody advised me that I should take my brother as a witness, and I took a statement from my brother to the tribunal hearing.

(Transcript p 7 ll 18-20.)

22    Further, the appellant submitted that if he returned to Sri Lanka the authorities there will know that he has lived with his cousin in Australia, and therefore the risk of harm to him is high.

Consideration

23    The grounds of appeal upon which the appellant relies can be summarised as follows:

    failure of the primary Judge to recognise that any potential mistreatment of the appellant on his return would be “significant harm” for the purposes of s 36(2)(aa) of the Act; and

    failure of the primary Judge to recognise the error in the Tribunal in failing to invite the appellant’s cousin to give evidence on his behalf.

24    In my view neither of these issues gives rise to an appealable error on the part of the primary Judge.

25    The first ground of appeal relates to the complementary protection obligations the appellant claims are owed to him under the Act. It is apparent on examination of the Tribunal’s decision however that, contrary to the claim as set out in the first ground of appeal, the Tribunal did consider in full possible complementary protection obligations owed by Australia to the appellant, and found that no such obligations were owed. In particular, the Tribunal gave detailed attention to the question whether the appellant could be the subject of significant harm should he be removed from Australia to Sri Lanka, and concluded that he would not. I am unable to identify any error in the Tribunal’s analysis of the operation of s 36(2)(aa) of the Act in the context of the appellant’s claims.

26    In relation to the second ground of appeal, the essence of the appellant’s complaint is that the Tribunal should have invited his cousin to give evidence in support of his claims at the hearing before it. However this aspect of the appellant’s case was considered and determined by the Federal Circuit Court. I am unable to identify any error in the approach of his Honour below. The appellant was represented by an agent at the Tribunal hearing, and it was for the appellant to make his case to the Tribunal: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]. While the submissions of the appellant in the appeal suggested that the appellant believed his cousin’s evidence would have been important, it is by no means clear how any information elicited from his cousin in the Tribunal would have affected its decision: Minister for Immigration and Border Protection v SZTRF [2013] FCA 1377.

27    I also note the appellant’s claim in the second ground that the respondent made a jurisdictional error by not complying with s 424A and s 424AA of the Act. At the hearing the respondent addressed this claim, in particular whether the tribunal had failed to provide the appellant with the opportunity to respond to concerns in writing. The respondent submitted that the Tribunal had complied with its statutory obligations in relation to s 424A and s 424AA of the Act. No submissions of any detail were provided by the appellant on this matter. In my view, this point has not merit.

28    In my view the proper order is to dismiss the appeal with costs.

Associate:

Dated:    11 October 2016