FEDERAL COURT OF AUSTRALIA

AXW15 v Minister for Immigration and Border Protection [2017] FCA 518

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, fixed by way of a lump sum at $4,363.00

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

REASONS FOR JUDGMENT

MORTIMER J

1    The appellant is a national of Sri Lanka and is of Tamil ethnicity. He arrived in Australia in August 2012 and lodged an application for a protection visa a few months after his arrival. From the time of his initial claims for protection, the appellant has identified his race (or ethnicity) as a Tamil and a political opinion which would be imputed to him by the Sri Lankan authorities because he is a Tamil as the two Convention grounds on which he feared persecution, for the purposes of the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth). His claims to complementary protection were put on a similar basis.

2    The appellant’s visa application was refused by a delegate in December 2013, and his application for review to the (then) Refugee Review Tribunal was also unsuccessful. On 7 May 2015 the Tribunal affirmed the delegate’s decision to refuse to grant the appellant a protection visa.

3    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. He was represented by solicitors and experienced counsel before the Federal Circuit Court. The Federal Circuit Court dismissed his application for judicial review: AXW15 v Minister for Immigration and Border Protection and Anor [2017] FCCA 158.

4    The appellant appeals to this Court from the orders and decision of the Federal Circuit Court. He is not represented on this appeal. The notice of appeal filed by him reproduces the grounds of judicial review before the Federal Circuit Court.

5    For the reasons I set out below, the appeal must be dismissed.

The course of the appeal

6    Prior to the hearing of the appeal, in correspondence to the Court, the appellant had sought an adjournment of the appeal hearing so that he could attempt to obtain legal representation. I was not satisfied there were sufficient grounds to adjourn the hearing. The appellant was informed he should attend the hearing as his appeal would be dealt with on that day.

7    The appellant attended the hearing of the appeal, and was assisted by a Tamil interpreter. He renewed his application for an adjournment of the appeal. I considered it appropriate for the appellant to give evidence in a formal sense about the basis for the adjournment, which he did. His evidence was that he had been seeking legal representation, but had been unable to secure any, despite inquiries with organisations such as the Asylum Seeker Resource Centre and Victoria Legal Aid. He stated that he had assistance in drafting the correspondence to the Court requesting the initial adjournment. The appellant confirmed in his evidence that the bridging visa he held did not entitle him to work so he had no source of income to pay for a lawyer and no other funds to pay for a lawyer. His evidence was that a person to whom he spoke at Victoria Legal Aid had told him to call back if he secured an adjournment today, because Victoria Legal Aid could not assist him today at short notice.

8    The Minister opposed the granting of an adjournment. Having heard from the appellant, I decided it was not in the interests of the administration of justice for the appeal to be adjourned. I gave brief oral reasons. In substance, my reasons were that although I accepted the appellant had made genuine efforts to secure legal representation, and felt significantly disadvantaged in conducting his appeal without a lawyer, I was not satisfied there was any reasonable prospect of him securing legal representation if this appeal were to be adjourned. The appellant has no work rights on the conditions of the bridging visa he holds and no source of income to pay for a private lawyer. I took judicial notice of the criteria for the grant of legal aid in migration cases, and was not satisfied there is any reasonable prospect the appellant will receive legal representation through Victoria Legal Aid, even if an adjournment were granted. For those reasons there would be no purpose served in granting the adjournment, as it would simply put off the hearing of the appeal with the appellant likely still being self-represented. Accordingly, I refused the application for an adjournment.

9    Having given my ruling, I then explained the way the appeal would proceed to the appellant. After that explanation, he indicated he would prefer to say what he had to say after the Minister’s submissions rather than before. The Minister’s written submission had been translated for him during an adjournment, as the appellant confirmed that he did wish to have them translated and he would find that helpful in understanding the appeal. Although I accepted the appellant was unlikely to comprehend in any detailed way the content of the legal submissions, since the appellant was quite insistent that he would find a translation of benefit, the Court briefly adjourned so that the interpreter could translate the submissions for the appellant. On resuming, counsel for the Minister made submissions in the usual way, and then the appellant responded. Most of his submissions dealt with his fears about being returned to Sri Lanka: he frankly conceded he could say nothing about the Minister’s legal arguments, or develop anything set out in the notice of appeal which I infer was also drafted by someone other than the appellant.

Resolution

10    In broad terms I accept the submissions made on behalf of the Minister on the appeal, and find that there was no error in the orders and decision of the Federal Circuit Court.

11    One issue which arose was whether this appeal, and the lawfulness of the Tribunal’s decision, was likely to be affected by the High Court’s decision in SZTAL v Minister for Immigration and Border Protection (S272/2016; S273/2016), a matter on which that Court is currently reserved. After hearing submissions from the Minister, and considering the issues as presented in the parties’ publicly available submissions in the High Court, together with the Tribunal’s reasons in the present case, I determined there was no basis to postpone final resolution of this appeal pending the outcome in SZTAL. That is because, unlike the appellants in SZTAL, the appellant before me had left Sri Lanka legally, and the Tribunal did not find he was at risk of prosecution if returned as a failed Tamil asylum seeker, nor did it find he would be sent to a Sri Lankan prison for any period. Rather, it found that he would be questioned at the airport. The question in SZTAL is whether, in circumstances where the use of laws of general application results in people being subject to prison conditions in Sri Lanka, those prison conditions could amount to “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” under s 5(1) of the Migration Act. Section 5(1) reflects the CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Open for signature 10 December 1984. 1465 UNTS 85 (entered into force 26 June 1987)) and ICCPR (International Covenant on Civil and Political Rights. Open for signature 16 December 1966. 999 UNTS 171. (entered into force 23 March 1976)). The appellants in SZTAL contend that even if that harm is not subjectively “intentionally inflicted” but rather performed “knowing that the act will, in the ordinary course of events, inflict pain or suffering or cause extreme humiliation”, that is sufficient for s 5(1). Since the Tribunal found the appellant will not be subjected to prosecution for illegal departure, the SZTAL question does not arise.

12    The course of the Tribunal’s review and its reasoning on the review are set out comprehensively in the decision of the Federal Circuit Court at [8]-[24]. Save where it is necessary to explain my reasoning, it is unnecessary to set out the Tribunal’s reasoning in detail.

13    By the time the matter was heard by the Federal Circuit Court, only one of the two grounds of review was pressed by counsel then representing the appellant. The first ground of review, which concerned a contention that the Tribunal failed to consider a claim of selective enforcement of the law by the Sri Lankan authorities because the appellant was a Tamil, was not pressed, although it still appears in the notice of appeal to this Court as the first ground of appeal. I accept the Minister’s submission it would be inappropriate to allow the appellant to re-agitate that ground before this Court. As I have noted, the appellant was represented by experienced counsel and it was apparent that a conscious decision was made not to press that ground of review below. In those circumstances no leave should be granted to the now self-represented appellant to attempt to reargue it in this Court. Being self-represented, the appellant did not actually seek leave to re-agitate the ground, but I have, out of an abundance of caution, proceeded as if he had.

14    The remaining ground of appeal before this Court, concerns a contention by the appellant that the Tribunal failed to consider a claim he had made. There was no dispute before the Federal Circuit Court, and no dispute on behalf of the Minister on the appeal, that a failure to consider a claim (or all “integers” of a claim or claims) can constitute a jurisdictional error on the basis that in those circumstances the Tribunal has not performed its review function according to law: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55], [57], [63]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24] per Gummow and Callinan JJ; cf Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38], where a slightly different formulation can be found.

15    The claim which was alleged by the appellant not to have been dealt with by the Tribunal was a claim that he would be subjected to harm during questioning by the Sri Lankan authorities, upon his arrival in Sri Lanka and immediately thereafter, even if after such questioning the Sri Lankan authorities might conclude he was not of any interest to them: see Federal Circuit Court reasons at [4].

16    The claim is most clearly found in the submission put to the Tribunal on the appellant’s behalf by his migration agent, prior to the Tribunal hearing. At [125]-[134], the appellant’s migration agent made submissions about the risk of harm he faced in being a failed asylum seeking returning to Sri Lanka. As part of that submission the migration agent stated (at [126]-[128]):

In SZQPA v Minister for Immigration, his Honour concluded that the Reviewer was wrong to assume that the Applicant would be able to persuade the Sri Lankan authorities that he was not a supporter of the LTTE without being subjected to serious harm. His Honour found:

...the Reviewer’s reasons only related to the general process of interviewing returning asylum seekers and stated that those suspected of having involvement with the LTTE would be taken away for further questioning. The applicant had been involved with the LTTE (albeit at a low level although the involvement of the applicant’s four brothers who have been killed or presumed killed by the Sri Lankan authorities would increase the applicant’s risk profile) and could therefore expect to be interrogated by the Sri Lankan police so that the authorities could satisfy themselves that, unlike his four brothers, the applicant did not represent a security risk. The applicant might well be able to persuade the authorities that he did not represent a risk, but the Reviewer needed to consider what might happen prior to that point being reached. [Emphasis added]

Gilmour J also dismissed the Minister’s appeal in Minister for Immigration and Citizenship v SZQPA and agreed that Reviewer had erred by focusing on the outcome and not the interview process that would subsequently amount to harm. Therefore, whether or not the Sri Lankan authorities deem the Applicant to have a pro-LTTE profile, it is necessary to consider the mistreatment he would face during interrogation in determining any potential LTTE association.

Additionally, there is a vast amount of country information which supports the notion that failed Tamil asylum seekers are mistreated at the hands of authorities upon return to Sri Lanka. The practice of arbitrary detention and serious mistreatment of individuals in detention, particularly Tamils, is so widespread that it is not remote.

(Footnotes omitted.)

17    Thus, by reference to the decision of Gilmour J in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025, the appellant submitted he was directing the Tribunal’s attention to the question of what might happen to him during the period he was questioned by Sri Lankan authorities, and while they were making enquiries in order to determine whether he might be suspected of affiliation or involvement with the LTTE or any other activity of concern to the Sri Lankan authorities.

18    At [27] of its reasons, the Federal Circuit Court identified this as the claim which the appellant contended had not been considered by the Tribunal.

19    However, I am not persuaded that the Federal Circuit Court then clearly grapples with the error identified by the appellant. Rather at [28]-[30] the Federal Circuit Court addresses a different contention, one concerning the process by which the Tribunal weighed and evaluated the country information before it. The Federal Circuit Court concluded (at [29]-[30]):

It is clear on a fair reading of the Tribunal’s reasons that the Tribunal accepted the country information in the DFAT reports, and the report from the UK Home Office. It is also clear on a fair reading of the Tribunal’s reasons that the Tribunal preferred the DFAT advice and the UK Home Office report over the reports referred to by the Applicant. The Court concludes the Tribunal did not fail to consider that critical evidence put before it by the Applicant, which included country information, and proceed to weigh it as against other evidence before the Tribunal.

The Tribunal not only considered the material and evidence supporting the Applicant’s claim but explained why it preferred the country information from DFAT and the UK Home Office as set out in the extract from the Decision Record contained in paragraph 22 of these reasons.

20    The reasoning in these passages does not, as I have said, really grapple with the appellant’s contention that a specific claim advanced by him had not been evaluated by the Tribunal. The Federal Circuit Court goes on in [31] to consider Gilmour J’s decision in SZQPA, but only for the purposes of distinguishing it and again not really grappling with the nature of the error identified by the appellant.

21    Notwithstanding that the Federal Circuit Court may not precisely have grappled with the error identified by the appellant, I am persuaded nevertheless by the Minister’s submissions on the appeal that there was no jurisdictional error of the kind identified by the appellant in the Tribunal’s reasoning process, nor in the conduct of its review of the delegate’s decision.

22    I accept the Minister’s submission that the approach taken by the Tribunal was one where its rejection of the appellant’s claims at a level of greater generality subsumed the rejection of the appellant’s claims on this particular issue, and involved a rejection of the factual premise on which that particular claim was based. The factual premise on which the claim was based was that, on the basis of the country information available, there was a real chance that failed Tamil asylum seekers returning to Sri Lanka would be subjected to mistreatment during processing and questioning at the airport or shortly thereafter either on the basis of their Tamil ethnicity or a political opinion in favour of the LTTE which would be imputed to them.

23    It is true that there was country information highlighted by the appellant’s migration agent, which tended to support this factual premise put on his behalf. It is also true that there was country information which tended to contradict the premise. As the Minister submits, the Tribunal preferred country information suggesting that Tamils returning to Sri Lanka were treated no differently than others returning to Sri Lanka and were not subject to any mistreatment during processing at the airport or during any short detention by reason of their race or ethnicity. Further the Tribunal preferred country information suggesting that persons such as the appellant would not be identified as having any “pro-LTTE” profile that would be of interest to the Sri Lankan authorities. That is evident from the Tribunal’s finding (at [36]) that:

…such questioning, in conjunction with intelligence, will quickly establish that while the applicant has been detained on two occasions in 2007, he was on each occasion released after checks were conducted indicating that he was of no adverse interest to the Sri Lankan authorities in Batticoloa or Colombo. The Tribunal accepts that the applicant may be identified as a failed asylum seeker returning from Australia but does not accept there to be a real chance that he will be imputed with a political opinion that is supportive of the LTTE because of his previous detentions or his status as a failed asylum seeker returning from Australia.

24    Earlier in its reasons at [34], the Tribunal had made this finding in relation to the appellant’s claims to fear mistreatment because he was Tamil:

As put to the applicant at hearing, DFAT assesses that returnees to Sri Lanka are treated in the same way regardless of their race other [sic] religion and that they are not subject to mistreatment during their processing at the airport.

25    The appellant made no claims based on specific facts or specific evidence personal to him to suggest that, during any questioning he faced from Sri Lankan authorities, there was a real chance he might be mistreated. Rather he relied on general country information said to be applicable to returning failed Tamil asylum seekers such as himself. At that level of generality, I accept the Minister’s submission that the observations of the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] are applicable:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(Emphasis added.)

26    The correctness of this approach was endorsed by the Full Court in Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [80]; MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at 110; and NABE at [63].

27    Given the nature of the findings made by the Tribunal, and the preferences expressed by it for particular country information over some of the country information put forward by the appellant’s agent, the factual premise that there was a real chance the appellant might be mistreated in that period of time when he was detained for questioning and during which the Sri Lankan authorities were determining whether there were any reasonable bases on which to further detain him, could not be sustained and was impliedly rejected by the Tribunal as part of its fact finding adverse to the appellant.

28    If the appellant had made such a claim based on facts particular to him, the way the Tribunal may have been required to consider such a claim could well have been different. I accept the Minister’s submissions that the absence of particular attributes identified by the appellant pertaining to his background personally serves to distinguish his circumstances from those of the appellant in SZQPA. The appellant in SZQPA had, on evidence accepted by the Tribunal, reasons particular to him that made it more likely he might be suspected by Sri Lankan authorities of having affiliations with the LTTE. In those kinds of circumstances, it could not be said that findings based on generalised country information about the treatment of Tamil asylum seekers would subsume and deal adequately with a claim by a person in the position of the appellant in SZQPA. Where there is evidence or material before the Tribunal which is capable of distinguishing the circumstances of a particular appellant from those dealt with in more generalised country information, and the claim is made by reference to those distinct circumstances, it is likely (as Gilmour J found in SZQPA) that in order to perform its function of review according to law, the Tribunal will need to deal specifically with such a claim. That is not this case. SZQPA has been distinguished by other judges of this Court and of the Full Court on this basis: see SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 at [61]-[62] (Katzmann J); WZAQR v Minister for Immigration and Border Protection [2013] FCAFC 122 at [28], [32]-[36]. A similar finding was also made by Perry J in SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [35]-[37].

29    For those reasons, and despite the reasoning of the Federal Circuit Court not being precisely directed at the nature of the error identified, I am nevertheless satisfied that there is no error in the ultimate conclusions of the Federal Circuit Court and the appeal should be dismissed. There is no basis for anything other than the usual order as to costs.

30    The Court’s practice now is to award costs by way of a lump sum wherever that is appropriate: see [3.5] and [4.1] of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016. I consider it is appropriate for a lump sum costs order to be made in this case. The Minister’s counsel gave an indication at hearing of the sum sought by the Minister, being $4,363. I consider that is a reasonable sum for the conduct of the appeal, including disbursements. An order will be made for that amount.

Associate:

Dated:    23 May 2017