FEDERAL COURT OF AUSTRALIA

AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant appeals from the judgment of the Federal Circuit Court on 18 July 2016. The Federal Circuit Court dismissed an application for judicial review of a decision of the second respondent (the Tribunal) on 28 February 2015 to affirm an earlier decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa under the Migration Act 1958 (Cth).

2    The notice of appeal sets out 11 grounds of appeal. Many of the grounds are generic and unparticularised (grounds 3 and 6 to 11). Further, some of the remaining grounds are new. They do not appear to reflect or relate to the grounds that were advanced before the primary judge (grounds 4 and 5). Some of the remaining grounds misconceive the role of the Federal Circuit Court (grounds 2 and 5).

3    For the reasons that follow, I have determined to dismiss the appeal. Before elaborating on my reasons I would note the following three preliminary matters.

4    First, I note that at the request of the appellant, on 2 November 2016 I adjourned the hearing of the appeal based upon a medical certificate produced by the appellant that was less than satisfactory. On 11 November 2016, I further adjourned the matter to enable the appellant to obtain legal advice.

5    Second, I have put to one side some of the appellant’s inadmissible affidavit material containing country information that was not put to either the Tribunal or the Federal Circuit Court. The same is not capable in substance of establishing jurisdictional error on the part of the Tribunal. In any event, it is inadmissible in form.

6    Third, there has been a grant of special leave to appeal concerning the decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, which discusses the element of intention in the context of complementary protection. But notwithstanding that grant, I am bound to apply SZTAL. Accordingly, there is no proper basis to postpone my decision on the present appeal notwithstanding that grant of special leave.

Background

7    The appellant is a Tamil from Sri Lanka. He advanced various claims in support of his visa application.

8    The appellant was represented by a migration agent and lawyer at all times throughout the review process, including at the hearing before the Tribunal. The appellant was represented by the same firm throughout the visa application process. The appellant was also represented at the hearing before the Federal Circuit Court.

9    The appellant claimed to fear harm in Sri Lanka on two bases.

10    First, the appellant said that he feared harm from three Sinhalese men who he used to work with for a garment company in Colombo. The appellant claimed that he had an altercation with two Sinhalese colleagues (“D” and “S”). In February 2012 (or possibly April 2012) D made a derogatory comment about a female Tamil colleague. The appellant reproached D, and reported him to their manager. The appellant was later threatened by D. In June 2012, the appellant says that he was attacked by D, S and another Sinhalese employee. The appellant pushed the latter employee, who fell and injured his head. Shortly thereafter, the appellant says that the Sri Lankan Army visited the appellant’s house looking for him. The appellant considered that his colleagues must have had connections with the Sri Lankan Army. He moved to his aunt’s house, and then left Sri Lanka on a boat to Australia.

11    Second, the appellant claimed to fear harm on the basis that he had left Sri Lanka illegally, and that he would be treated on his return as a failed asylum seeker with a consequent risk of suffering physical harm.

12    The Tribunal did not accept that the appellant was a truthful witness relating to his claims of past persecution, his reasons for travelling to Australia, or his future fears. The Tribunal was concerned about various inconsistencies with the appellant’s evidence and considered that various aspects of the appellant’s claims were not credible. The Tribunal identified numerous inconsistencies in the appellant’s evidence. The Tribunal also considered that certain aspects of the appellant’s claims were implausible. These various concerns led the Tribunal to conclude that the appellant was not a truthful witness and that he had exaggerated and fabricated his account of events, as well as claimed fears, upon which he had based his protection claims. The Tribunal was however prepared to accept certain facts about the appellant’s circumstances.

13    Further, the Tribunal, having regard to a wide range of country information, did not accept that the appellant faced a real chance of suffering serious or significant harm in Sri Lanka on the basis that he had left illegally and that he would be treated as a failed asylum seeker. The Tribunal noted that persons with certain profiles, including those who had a real or perceived association with the Liberation Tigers of Tamil Eelam (LTTE), might possibly be detained and mistreated on return to Sri Lanka. But the Tribunal noted that the appellant had not claimed to have been involved in the LTTE or to have been suspected of such involvement. Accordingly, the Tribunal was not satisfied, having regard to the available information, that the appellant faced a real chance of harm.

14    Because it is relevant to some of the grounds of appeal before me, it is appropriate to set out certain findings made by the Tribunal concerning an alleged visit(s) by the Sri Lankan Army to the appellant’s home.

15    It is convenient to set out the following paragraphs of the Tribunal’s reasons:

[30]    The Tribunal was also concerned about a number of inconsistencies and changing evidence in relation to the details of what occurred when the Sri Lankan Army visited the household in June 2012. For example, as the Tribunal put to the applicant:

•    In his statement, he only claimed that two Sri Lankan Army officers came to the house.

•    In his interview with the delegate, as set out in the delegate’s decision record, he said it was two Sri Lankan Army officers and three civilians (D and S and the new employee) who came to his home.

•    He told the Tribunal that it was two Sri Lankan Army officers, together with two civilians.

[31]     When the Tribunal asked the applicant which one was correct, he said that his mother told him that it was two army officers and two people. When the Tribunal asked why he had said different things at different times, he said maybe because he was confused. The Tribunal has considered this explanation, but does not find it persuasive.

[32]     Further, the applicant told the Tribunal that after finishing work at midnight, he had taken the bus (which took two hours), thus returning home at 2.00 a.m., he told his mother what had happened, and he went to sleep. He then said that at 5.00 a.m., the people arrived and asked for him. They said he has injured someone’s head and if they see him, they will kill him. The Tribunal noted that the conversation was different to the conversation as set out in his statement; namely the Army officers asked if he was at home; they asked if he worked at the factory; and they asked if he was involved in the incident that caused the new employee’s head to bleed, and his mother lied and said she had not been informed of the incident. There was no suggestion in his statement that the army officers assumed he was involved, nor that they had threatened they were going to kill him. The applicant responded that he did not know why.

[33]     Further, the Tribunal was concerned about the applicant’s changing evidence about when he left his home that night. At one stage he said that when he told his mother what had happened (when he arrived home, at about 2.00 a.m.), she told him to go to the aunt/neighbour’s place, and not remain at the home. He later said that it was when there was a knock at the door (at about 5.00 a.m.) that his mother told him to go to the aunt/neighbour’s place.

[34]     When the Tribunal asked him to clarify what time he left his house after arriving home at 2.00a.m., he then said he left at about 5.00 a.m. The Tribunal noted however that in his statement, he claimed that he was already at his neighbour's house when two uniformed SLA officers came to his home to ask about him; and it was only after he returned home from his neighbour's house that his mother informed him that the army officers had come to the home (which is different to his evidence that he left the house in the knowledge that the army officers were there, asking about him). The applicant said he did not know why there were these inconsistencies, and it was a bit confusing for him.

[35]     The Tribunal is not persuaded by these explanations. Similarly, the Tribunal has also considered the agent’s submission concerning the statement and the applicant’s lack of experience in interviews, however the Tribunal does not consider that this can explain the difficulties.

[…]

[45]     On the basis of the adverse credibility finding, the Tribunal does not accept that the situation deteriorated into threats or physical contact between the applicant and these three men, nor that the claimed events of June 2012 occurred (including that the blocking of the applicant and his colleague hitting his head, the visits by the Sinhalese people and the Sri Lankan Army to his home); nor does the Tribunal accept that since leaving Sri Lanka, the Sri Lankan Army has enquired about the applicant’s whereabouts. The Tribunal does not accept that the applicant left Sri Lanka in fear, or because of a fear of any future harm; the Tribunal considers the more likely scenario is that the applicant came to Australia as a skilled young man hoping to earn some more funds in Australia; but the Tribunal does not accept that he is unable to earn a living or subsist in Sri Lanka, nor that he has debts (noting, as referred to above, he did not claim that this would be a concern for him upon return to Sri Lanka despite being given the opportunity to do so by the Tribunal).

the decision below

16    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant advanced grounds of review in the following form:

(a)    The Tribunal erred by “taking into consideration facts not relevant to the matter in making the decision”.

(b)    The Tribunal erred by “failing to ask reasonable [sic] number of questions in order to ascertain the credibility of the Applicant and make a fair decision”.

(c)    The Tribunal erred by “not taking into consideration the Complementary Protection Provision of the Migration Act 1958 of the information provided by the Applicant [sic]”.

17    The Federal Circuit Court rejected each of these grounds. It would appear that the appellant does not seek to re-agitate before me the substance of most of these grounds. It is therefore unnecessary to discuss that Court’s reasoning save for one matter. The first ground of review before the Federal Circuit Court does have a resonance with grounds 1 and 2 before me. As to that overlapping question, relevantly the primary judge said at [39]:

Another complaint the applicant makes is that the Tribunal made adverse credibility findings in part based on the statement of his mother and what the applicant said at his initial interview. This submission is without merit. The applicant submitted his mother’s statement. In those circumstances he cannot then complain that the Tribunal placed some reliance on it in finding that he gave inconsistent versions of his evidence. It is also necessary to point out that when he complains about the Tribunal’s findings appearing in the third paragraph of CB 153, that is in fact the delegate’s decision, not the Tribunal’s.

18    For completeness, and also given the appellant’s unrepresented status before me, I will give him leave to advance before me to the extent necessary grounds that were not advanced before the primary judge.

Consideration

19    The appellant’s grounds of appeal 3 and 6 to 11 are generic and unparticularised. They are effectively devoid of content. It is not incumbent on the Court to independently consider for itself whether such generic grounds might be capable of being particularised so as to identify a specific error made by the primary judge or a jurisdictional error made by the Tribunal. The appellant was given an opportunity to adequately particularise these grounds in advance of the hearing. He has failed to do so.

20    In my view, and in these circumstances, grounds 3 and 6 to 11 have no substance and I need say nothing further about them.

21    It is appropriate to briefly deal with the other grounds (grounds 1, 2, 4 and 5).

(a) Grounds 1 and 2

22    Grounds 1 and 2 are related. Ground 1 is that the primary judge erred by “failing to accept the grounds that the Tribunal used the [appellant’s] answer to a question which depended entirely upon the version of his mother’s explanation, to make a decision on the credibility of the [appellant]. The [appellant] was simply explaining what his mother told him.” By particulars, the appellant refers “to the incident where the mother refers to the number of people who attended the home to make inquiries when the [appellant] was not home”. Ground 2 is that the primary judge erred by “accepting that the Tribunal was correct in concluding the answers given by the [appellant] that related to what his mother told him inaccurately was a valid criteria to find that the [appellant] was not credible”. The particulars to this ground state:

The [appellant] was asked by the mother to leave the house late the previous night. Again early in the morning, the mother asked that the [appellant] leave the house. This was wrongly concluded against the [appellant’s] credibility of inconsistency because the Tribunal assumed that the [appellant] left the house when she first asked him. In fact, the [appellant] left only on the second request.

23    It is difficult to see how the appellant’s criticisms of the primary judge are warranted. The nature and basis of the first ground of review before the primary judge, and the appellant’s submissions to the primary judge in support of that ground, were unclear. In any event, no error is demonstrated in what the primary judge said at [39].

24    Moreover, the Tribunal did not make any jurisdictional error. Relevantly to grounds 1 and 2, the appellant has not demonstrated that the Tribunal engaged in irrational or illogical reasoning in concluding that the appellant gave inconsistent evidence, or more generally that he was not a witness of truth. There were various inconsistencies that the Tribunal identified, including the following:

(a)    One inconsistency related to the appellant’s account of when his mother told him to go to his aunt’s house on the relevant night in June 2012. Initially, the appellant said that his mother told him to go to his aunt’s place when he arrived home and told her what had had happened to him (at 2.00 am). Subsequently, the appellant said that it was only later when there was a knock at the door (at 5.00 am) that his mother told him to go to his aunt’s house.

(b)    Another and related inconsistency related to whether he knew that Sri Lankan Army officers were looking for him when he had left his house. In his protection visa application, the appellant said that he was at his neighbour’s house when the officers came to his house, and it was only later that he learnt that the officers had been looking for him. Subsequently, the appellant said that he left the house at 5.00 am when the officers came to his house.

(c)    There were also other inconsistencies as to the various versions that he gave of what his mother had said to him.

25    Generally, the Tribunal did not form an adverse assessment of the appellant’s credibility simply because he recounted “what his mother [had] told him”. It found that the appellant had given inconsistent evidence because he had given different accounts of what his mother had said to him.

26    Moreover, the Tribunal did not form an adverse assessment of the appellant’s credibility simply based on when he left his house that night. Rather, it formed the view that the appellant had given inconsistent evidence about whether he knew that Sri Lankan Army officers were looking for him when he left his house that night.

27    As to the relevant principles, I repeat what I said in MZARJ v Minister for Immigration and Border Protection [2016] FCA 1303 at [26] to [31]. No jurisdictional error has been made out. Grounds 1 and 2 are not maintainable.

(b) Ground 4

28    Ground 4 is that the primary judge erred because she “failed to apply the correct test in assessment of the [appellant] accepting that the [appellant] could ward off the army’s threat, while living in his house”.

29    It has not been made clear what test the appellant contends the primary judge (or the Tribunal) applied, what is the correct test that he contends should have been applied, and what is the question or subject matter in relation to which this test should have been applied.

30    The Tribunal, based on its adverse assessment of the appellant’s credibility, was simply not satisfied that the Sri Lankan Army had visited the appellant’s house as claimed, or that it represented any threat to the appellant. And the primary judge was not satisfied that the Tribunal made a jurisdictional error on any of the grounds advanced in the application before her.

31    In my view, the Tribunal made no jurisdictional error in this respect, and the primary judge made no error in failing to identify any such error by the Tribunal. Ground 4 is not made out.

(c) Ground 5

32    Ground 5 is that the primary judge erred because she “failed to consider the [appellant’s] fear of persecution at the hands of the Sri Lankan Army, consisting of Sinhalese people, if detained”. Again, there has been a lack of clarity with this ground. There are several possible dimensions and I will consider each in turn.

33    As to the first dimension, the Tribunal, based on its adverse assessment of the appellant’s credibility and his claims, was not satisfied that the Sri Lankan Army had visited the appellant’s house as claimed, or that it represented any threat to the appellant in relation to or as a consequence of the specific episode recounted by the Tribunal at [30] to [35] of its reasons.

34    As to the second dimension, the Tribunal dealt with an independent claim made by the appellant to fear harm from the Sri Lankan authorities (many of whom might be Sinhalese) as someone who had left Sri Lanka illegally, and who would be treated as a failed asylum seeker on his return. But the Tribunal did not accept that the appellant had a profile that would make him someone who faced a real chance of suffering serious or significant harm on his return.

35    As to the third dimension, the Tribunal dealt with the possibility of the appellant if returned to Sri Lanka being detained on arrival in Sri Lanka. It accepted that he might be detained for a short period awaiting a bail hearing (between 24 hours or a few days) and that he might be questioned by Sri Lankan authorities. However, it was not satisfied that there was any credible evidence that he would suffer serious or significant harm during such a short period of detention.

36    Finally, and relatedly, if ground 5 can be taken to embrace the legal issue dealt with by the Full Court in SZTAL, then I am bound to apply SZTAL. Moreover and in any event, even if SZTAL was incorrectly decided, it does not appear that the appellant put to the Tribunal (see its reasons at [121] and [122]) that the requisite intention on the part of the Sri Lankan authorities could be made out on the basis that the authorities knew that remanding a person in custody in Sri Lanka would result in pain and suffering or extreme humiliation (cf AIS15 v Minister for Immigration and Border Protection [2016] FCA 978 at [46]). Accordingly, whatever the competing interpretations discussed in SZTAL, no jurisdictional error is established.

37    The appellant has not established any specific jurisdictional error in the manner in which the Tribunal dealt with these claims or any error made by the primary judge. Ground 5 is not made out.

Conclusion

38    None of the appellant’s grounds of appeal have been made out. The appeal must be dismissed with costs.

Associate:

Dated: 29 November 2016