FEDERAL COURT OF AUSTRALIA

AVF15 v Minister for Immigration and Border Protection [2017] FCA 1094

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia by boat in July 2012.

2    On 30 October 2012, the appellant applied for a Protection (Class XA) visa (a protection visa). His visa application included a statutory declaration that set out the bases of his claims, which included a claim to fear harm due to his race and an imputed political opinion.

3    On 19 December 2013, a delegate of the first respondent (the Minister) refused to grant the visa.

4    The appellant applied to the Refugee Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, for review of the delegate’s decision.

5    On 23 April 2014, the appellant’s migration agent, Australian Migration Options Pty Ltd, provided to the Tribunal a written submission and a further statutory declaration of the appellant.

6    On 20 April 2015, a hearing before the Tribunal took place. The appellant appeared and gave evidence at the hearing. He was represented at the hearing by his migration agent.

7    On 21 April 2015, the Tribunal affirmed the delegate’s decision to refuse to grant the appellant a protection visa.

8    The appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.

9    On 11 July 2016, a hearing took place in the Federal Circuit Court. The appellant represented himself at that hearing. The primary judge gave ex tempore reasons for judgment (subsequently revised from the transcript) (the Reasons) dismissing the application.

10    The appellant appeals to this Court from the judgment of the Federal Circuit Court. The hearing of the appeal took place on 18 November 2016. The appellant represented himself at the hearing.

11    I deferred handing down a decision in this matter pending the hearing and determination of an appeal to the High Court of Australia, namely the appeal from the decision of the Full Court of this Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556, on the basis that the appeal in the present case could be affected by the High Court appeal. The High Court has now given judgment in the appeal: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. The High Court, by a majority, dismissed the appeal. It follows from this result that there does not appear to be any additional point, of the kind argued in SZTAL, that could be raised in the present case.

12    For the reasons that follow, I consider that the appeal should be dismissed.

The Tribunal decision

13    The Tribunal summarised the appellant’s claims at [21]-[26] of its reasons (the Tribunal’s reasons). The Tribunal noted, at [21], that the appellant: is a Tamil born in Peiyawelan, Jaffna district; has a wife and two children; and left Sri Lanka illegally by boat and arrived in Australia in July 2012. As set out at [22] of the Tribunal’s reasons, the appellant claimed that: in 1989, he travelled to Puthumanthalan in Mullaitivu district with his father, as his father wanted him to work as a fisherman; he worked for a fisherman and his father was paid money; the ethnic conflict worsened, the Liberation Tigers of Tamil Eelam (LTTE) entered the area in 1995 and it became an LTTE stronghold; in 2007-08, unmarried young males were forced to join the LTTE but, as he was married, he was not conscripted; and he was also exempted on the basis of his work as a “toddy tapper”, whose association paid large taxes to the LTTE. As set out at [23], the appellant claimed that: in 2009, many Tamils, including the appellant’s brother, were killed by the Sri Lankan army who were firing rockets; the appellant and his family secretly crossed a river to get to where the army was; the army took the appellant and his family to the Chettikulam army camp; he was interrogated there more than once as the authorities suspected that he was an LTTE member or had close links to them; and the appellant’s son was assaulted by the army while at the camp. As set out at [24], the appellant claimed that: in late 2010, the appellant and his wife were allowed to leave the camp for five days to visit family in Jaffna; the appellant was on a motorbike with his brother and they were stopped by the police; they were questioned and he was asked for identification papers but did not have them on him; the police took him to their station and beat him along the way; and he was imprisoned overnight. As set out at [25] of the Tribunal’s reasons, the appellant claimed that: in November 2011, the appellant and his family were allowed to return home, but the area was heavily militarised; the Criminal Investigation Department of the Sri Lankan police and the army continued to question and interrogate him from time to time; and on three occasions at sentry points he had to perform menial tasks including road works and chopping wood. As stated at [26] of the Tribunal’s reasons, the appellant claimed that he feared harm because he is from an area formerly controlled by the LTTE and because he has made asylum claims in Australia.

14    The Tribunal set out certain independent country information at [27]-[35] of its reasons. At [36], the Tribunal accepted that the appellant was a national of Sri Lanka.

15    The Tribunal next turned to its assessment of the appellant’s claims. The Tribunal discussed the claims generally (including findings on the appellant’s credibility) at [37]-[50] of its reasons. The Tribunal accepted a number of the appellant’s claims (at [37]), including that: in 1998-99 he was injured in an army bombing and suffered scarring; in April 2009, the appellant’s brother was killed in army shelling and the appellant’s family were forced to leave their home due to the conflict and move to an army-controlled area where they were put into a camp in Chettikulam; and the appellant was interrogated there about whether he had an association with the LTTE. However, the Tribunal doubted the credibility of other claims made by the appellant, setting out detailed reasons for forming that view (at [38]). In light of these matters, the Tribunal did not accept that the appellant was stopped by the police in 2010 and was detained, beaten and forced to pay a fine (at [39]). The Tribunal also did not accept that the appellant had ever been forced to undertake unpaid labour for the army or anyone else. The Tribunal, at [41], did not accept that the appellant was of any adverse interest to the authorities or anyone else for any reason (including being suspected of links to the LTTE). After discussing various aspects of the evidence, the Tribunal found, at [45], that the chance that the Sri Lankan authorities or anyone else would now, or in the reasonably foreseeable future, impute the appellant with a pro-LTTE political opinion “to be remote”. Further, at [48], the Tribunal found that the chance or risk that the appellant would be persecuted or significantly harmed on account of being a Tamil, or a member of a particular social group consisting of Tamil males or Tamil males in an area previously controlled by the LTTE, was “remote”. The Tribunal concluded this section of its reasons by stating at [49]-[50]:

49.    Based on his individual circumstances and the overall weight of the country information, I find that the applicant does not face a real chance of persecution on account of his Tamil race, membership of particular social groups (including male Tamils or Tamil males in an area previously controlled by the LTTE or his family) or his actual or imputed political opinion or any other Convention reason or any non-Convention reason, now or in the reasonably foreseeable future from the authorities, paramilitary groups or anyone else.

50.    Based on his individual circumstances and the overall weight of the country information, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on these bases.

16    The Tribunal then considered the aspect of the appellant’s claims based on being a failed asylum seeker if he were returned to Sri Lanka (at [51]-[57] of the Tribunal’s reasons). The Tribunal accepted, at [54], that those with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka and that this also applied to people with such a profile who had returned to Sri Lanka from abroad. However, the Tribunal was not satisfied that returnees generally were regarded as having links with the LTTE or being opposed to the Sri Lankan government simply because they had been in Australia. The Tribunal concluded this section of its reasons at [56]-[57], as follows:

56.    Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group (such as failed asylum seekers or Tamil returned failed asylum seekers or returnees or failed Tamil asylum seekers returning from a Western country or failed asylum seekers returning from a Western country).

57.    Based on his individual circumstances and the independent country information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm on this basis.

17    The Tribunal considered matters relating to illegal departure at [58]-[63], concluding that: the appellant did not face a real chance of persecution on account of his illegal departure in the reasonably foreseeable future from the authorities or anyone else (at [62]); and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm on this basis (at [63]).

18    The Tribunal then stated, under the heading “Cumulative assessment”, as follows (at [64]-[65]):

64.    Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any reason (Convention or non-Convention related). His fear of persecution is not well-founded.

65.    Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.

19    The Tribunal concluded that it was not satisfied that the appellant was a person “in respect of whom Australia has protection obligations under the Refugees Convention” and, therefore, the appellant did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth). Further, the Tribunal was not satisfied that the appellant was a person “in respect of whom Australia has protection obligations” under s 36(2)(aa). There being no suggestion that the appellant satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfied s 36(2)(a) or (aa) and who holds a protection visa, the Tribunal concluded that the appellant did not satisfy any of the criteria for a protection visa in s 36(2).

The Federal Circuit Court decision

20    The appellant’s application to the Federal Circuit Court for judicial review raised two grounds. These were that:

(a)    the decision of the Tribunal was affected by an error of law; and

(b)    the Tribunal denied the appellant procedural fairness.

21    The primary judge set out the background to the application at [3]-[4] of the Reasons. The primary judge then described, at [5]-[15], the decision of the Tribunal.

22    The primary judge considered the two grounds at [16]-[24] of the Reasons. In relation to the first ground, the primary judge explained (at [17]) that the Tribunal’s duty under the Migration Act was to review the delegate’s decision, which meant, in effect, that it had to determine whether it was satisfied that the appellant met the criteria for the grant of a protection visa. After noting that those criteria are relevantly contained in ss 36(2)(a) and (aa), the primary judge stated that it “will be in the Tribunal’s understanding of those criteria, or its application of them and to the facts before it, that any error of law might arise”. The primary judge could not, however, see that the Tribunal fell into any such error. The primary judge stated: “[T]he Tribunal addressed itself in a way which, firstly considered the past factual background put forward by the applicant in support of his claims and then assessed the future probability of any harm coming to the applicant against the background of those findings”. The primary judge continued (at [18]-[19]):

18.    In particular, in line with the criteria in ss.36(2)(a) and 36(2)(aa), [the Tribunal] addressed the issue firstly, whether there was any well-founded fear of persecution for a Convention reason in the reasonably foreseeable future and, secondly, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia that there is a real risk that he will suffer significant harm on those bases.

19.    On the face of the Tribunal’s reasons then, it addressed the correct question posed by the criterion. Further, on the basis of the findings that I have outlined above, it is clear that the Tribunal addressed each of the applicant’s claims which he said brought him within those criteria. For those reasons, I consider that the Tribunal did not fall into any error of law.

23    In relation to the second ground, namely procedural fairness, the primary judge stated (at [20]) that the question whether the appellant was denied procedural fairness must be viewed by reference to the provisions of the Migration Act, in particular the provisions in Div 4 of Pt 7. The primary judge referred to s 422B(1), which provided that the Division “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. As no particulars had been provided of the alleged denial of procedural fairness, the primary judge stated that he had “looked at the matter broadly with a focus on whether there was any breach by the Tribunal of its obligations of the provisions in div.4 of pt.7 of the Act”. The primary judge continued at [21]-[24]:

21.    I can see nothing that might fall outside of those, such as an apprehension of bias, as the transcript of the Tribunal’s hearing reveals that such a claim would have no foundation at all. The two critical obligations on the Tribunal in div.4 of pt.7 are found at s.424A, which deals with adverse material and s.425 of the Act, which deals with the obligation to conduct a hearing. The obligation under s.424A however, is limited and does not apply to information: for example, that is not specifically about the applicant.

22.    There is nothing in the material before the Court to suggest that there was any information that fell within s.424A(1) of the Act and it is clear from the transcript of the hearing, that the Tribunal went beyond its obligations under that section. Section 425 requires in essence, that the applicant be given the opportunity to give evidence about, and present arguments in respect of the issues that arise in relation to the decision on review.

23.    Once again, as I have noted in respect of the transcript of the hearing, it is clear to me that the Tribunal did raise the issues that were critical to its decision with the applicant at the hearing and that he had a real opportunity to address those issues. That opportunity included the opportunity for the applicant to take an adjournment and to discuss matters with his migration agent. Both the applicant and the migration agent made submissions towards the conclusion of the hearing. For those reasons, I conclude that there was no breach of any of the provisions in div.4 of pt.7 and, having read all of the material before the Court, cannot discern any suggestion that there was otherwise a denial of procedural fairness.

24.    It is my view that the Tribunal properly conducted a review according to law and that there is no jurisdictional error affecting its decision. For those reasons, the application must be dismissed.

The appeal to this Court

24    The appellant’s notice of appeal to this Court contains the following two substantive grounds:

1.    The appellant contends that the learned judge erred in finding that his integer claim of a Tamil with perceived LTTE links were assessed by the Tribunal. But the Tribunal clearly did not assess this integer claim, which was not considered by the learned judge.

2.    The Tribunal has not afforded natural justice or assessed the appellant’s claims cumulatively and the learned judge erred by not finding that the Tribunal erred jurisdictionally.

25    The appellant made brief oral submissions (with the assistance of an interpreter) at the hearing of the appeal. These were largely directed to the merits of his case for asylum rather than seeking to show error in the decision of the primary judge. I will now consider each of the appeal grounds.

26    In relation to the first ground, the Tribunal was obliged to deal with the appellant’s claims, and the appellant’s claims included that he would be imputed with links to the LTTE and for that reason be harmed. However, the difficulty with the first ground is that the Tribunal did deal with this integer of the appellant’s claims, at [37]-[50] of its reasons. In particular, as noted above, at [45], the Tribunal found that the chance that the Sri Lankan authorities or anyone else would, now or in the reasonably foreseeable future, impute the appellant with a pro-LTTE political opinion “to be remote”. I refer also to [48] of the Tribunal’s reasons, summarised above. The Tribunal’s conclusions on these aspects of the appellant’s claims were set out at [49]-[50] of the Tribunal’s reasons, quoted above. Thus, the Tribunal squarely addressed the claim that was made by the appellant about the risk of harm from an imputed political profile, and no error is shown in the decision of the primary judge in this regard.

27    The second ground of appeal has two aspects. The first of these concerns natural justice (or procedural fairness). In the absence of particulars, it is difficult to ascertain how the appellant contends that the Tribunal failed to comply with its natural justice or procedural fairness obligations.

28    As noted by the primary judge, under s 422B(1) of the Migration Act, Div 4 of Pt 7 is taken to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. In other words, the common law obligations of procedural fairness have, to the extent provided in the Division, been supplanted by obligations arising under the Act in relation to the Tribunal’s hearings (subject to an overarching obligation to act in a way that is fair and just: s 422B(3)). I note that s 422B was discussed in WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 at [57]-[58] per French J (as his Honour then was); approved in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [36].

29    Sections 425 and 425A of the Migration Act obliged the Tribunal to invite the appellant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the Tribunal’s review of the delegate’s decision. The issues arising in the review are ordinarily the issues that were dispositive of the claims before the delegate. If the Tribunal considers that a different issue is dispositive, and that issue is not apparent from the statutory scheme or material, it must take steps to bring the issue to the appellant’s attention so that he or she can give evidence and present arguments in relation to the new issue: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]-[36], [39], [47]-[48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In the present case, there does not appear to be a basis to contend that the Tribunal did not comply with its obligations under ss 425 and 425A.

30    Under s 424A(1) of the Migration Act, in summary, the Tribunal was obliged to give the appellant clear particulars of any information it considered would be the reason, or a part of the reason, for affirming the delegate’s decision; and to ensure, as far as reasonably practicable, that the appellant understood why the information was relevant to the review. In the present case, there does not appear to be a basis to suggest that the Tribunal failed to properly disclose information as required by s 424A(1). In the course of reaching its decision, the Tribunal relied solely on information provided by the appellant (in writing) during the course of his visa application or (orally or in writing) in the course of the Tribunal proceeding, and independent country information not specifically relating to the appellant. Both of these types of information fall within the exceptions specified in s 424A(3) and therefore were not subject to the disclosure requirements: see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [82]-[83], [88], [106] per Tracey and Foster JJ.

31    No error has been demonstrated in the Reasons in relation to the procedural fairness or natural justice ground.

32    The second ground of appeal also contains a contention that the Tribunal did not assess the appellant’s claims cumulatively. The Minister pointed out that this matter was not included in the appellant’s grounds before the primary judge, but did not suggest that he suffered any real prejudice by the ground now being raised. In the circumstances of this case, I am prepared to entertain this ground. However, the ground should be rejected. The Tribunal’s reasons make clear that it did consider the appellant’s claims cumulatively: see [64]-[65] of the Tribunal’s reasons, quoted above.

33    For these reasons, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will be an order that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    20 September 2017