FEDERAL COURT OF AUSTRALIA

CSJ15 v Minister for Immigration and Border Protection [2017] FCA 1463

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to proceed on his amended notice of appeal dated 13 November 2017.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

TRACEY J:

1    This is an appeal from a decision of the Federal Circuit Court (“the FCC”) which dismissed an application by the appellant for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”): see CSJ15 v Minister for Immigration and Border Protection [2017] FCCA 781.

2    The appellant is a citizen of Sri Lanka who is of Tamil ethnicity. He arrived in Australia in July 2012 as an irregular maritime arrival. In December 2012 he made application under the Migration Act 1958 (Cth) for a Protection (Class XA) visa. The application was refused by a delegate of the Minister.

3    The appellant promptly applied to the Tribunal for review of the delegate’s decision. The application was made with the assistance of a migration agent.

4    The Tribunal conducted a hearing in September 2015. The appellant attended and had the assistance of a migration agent and an interpreter. The Tribunal affirmed the decision under review.

THE APPLICATION TO THE FCC

5    The appellant sought judicial review of the Tribunal’s decision in the FCC. He relied on two grounds. The first was that the Tribunal’s decision was affected by jurisdictional error. The second was that the Tribunal had denied him procedural fairness. Each ground was particularised at some length.

6    The appellant appeared in person before the FCC on two occasions. On each occasion he was assisted by an interpreter.

7    At the first hearing the trial judge asked the appellant whether he had drafted the grounds of judicial review. The appellant advised the Court that the grounds had been prepared by a lawyer. His Honour asked the interpreter to translate the grounds of review to the appellant. Once this was done his Honour asked whether the appellant understood what the grounds meant. The appellant said that he did not. When asked whether he wanted to rely on the grounds the appellant said that he did not.

8    The Court then asked the appellant to explain, in his own words, why he said that the Tribunal had erred in law in dealing with his application. The appellant responded that he was concerned that the interpreter had made mistakes in translating his (the appellant’s) evidence and submissions to the Tribunal. At his lawyer’s suggestion the appellant had sought and obtained a voice recording and a transcript of the Tribunal hearing. The appellant also said that he was in the process of obtaining funds so that he could retain a lawyer to appear for him in the FCC.

9    The appellant sought and was granted an adjournment of the hearing despite the opposition of the Minister.

10    When the proceeding returned to the FCC in February 2017 the appellant remained unrepresented. He advised the Court that he did not have any complaints about the interpretation at the Tribunal hearing. The trial judge confirmed that the appellant did not understand the grounds appearing in his application for judicial review and did not wish to rely on those grounds.

11    When the appellant was invited to tell the Court what was wrong with the Tribunal’s decision, he referred to various highlighted passages in the Tribunal’s reasons and a statutory declaration which had been attached to his application for a protection visa. The highlighting had been provided by lawyers.

12    The Court took the appellant through each of the highlighted passages and invited him to elaborate on the matters raised in each of the passages. It became apparent to the trial judge (at [19]) that the appellant “was, in reality, asking the Court to engage in a merits review, generally.”

13    The trial judge, nonetheless, painstakingly examined each of the appellant’s claims and explained why he found no error in the Tribunal’s treatment of the application.

14    The FCC dismissed the application.

THE APPEAL TO THIS COURT

Procedural Issues

15    The appellant has appealed to this Court from the FCC’s decision.

16    His original grounds of appeal were that the FCC erred in not finding that the Tribunal’s decision was affected by jurisdictional error and that the Tribunal had denied the appellant procedural fairness. As particularised, each of these grounds corresponded with the grounds which had originally been advanced in support of the appellant’s judicial review application in the FCC. They were the same grounds and particulars which the appellant had, effectively, abandoned before the FCC.

17    On 13 November 2017 CSJ15 filed an amended notice of appeal. It contained two grounds.

18    The first was that the FCC had erred in not finding that the Tribunal had made a jurisdictional error by failing to consider and determine the length of time during which CSJ15 might be detained were he to return to Sri Lanka.

19    The second was that the FCC had erred by not finding that the Tribunal’s decision was “legally unreasonable”.

20    Neither of these grounds had, in terms, been argued in the FCC. The FCC did identify, at [45] of its reasons, that one of CSJ15’s arguments appeared in substance to be a claim of jurisdictional error based on legal unreasonableness and illogicality.

21    In these circumstances it was necessary for CSJ15 to obtain the leave of the Court to raise new grounds on the appeal: see Summers v Repatriation Commission (2015) 230 FCR 179 at 206-207; [2015] FCAFC at [93]-[95] (Kenny, Murphy and Beach JJ); Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 at 49; [2016] FCAFC 61 at [114] (Kenny and Perry JJ).

22    The amendments had been proposed after CSJ15 had obtained legal representation. Although the amended notice had been filed belatedly, the Minister had had time to consider the amended grounds and to deal with them in written submissions.

23    The Minister consented to leave being granted.

24    I considered that it was expedient and in the interests of justice that leave should be granted and I so ordered.

Overview of Appeal Issues

25    CSJ15’s arguments on the appeal were centred on submissions which had been made, on his behalf, by his migration agent to the Tribunal and aspects of those submissions which, he complained, had not been dealt with by the Tribunal.

26    The first of those submissions was dated 12 December 2013 and extended over 52 pages.

27    The second set of submissions is undated. They were filed with the Tribunal at some time after it conducted an oral hearing on 21 September 2015 and prior to 25 November 2015 when the Tribunal handed down its decision. In its reasons the Tribunal expressly referred to what it described as these “post-hearing submissions.”

28    In the first set of submissions the migration agent said that CSJ15 was:

claiming persecution on the basis of his race, namely that he is Tamil, his imputed political opinion and his membership of a number of particular social groups namely, a returnee from a Western Country and a young Tamil male from the North of Sri Lanka.

29    In a section of these written submissions, which extended from pages 9 to 43, the migration agent dealt with the question of whether there was a real chance of persecution should CSJ15 be returned to Sri Lanka. For the most part, this section of the submissions comprised lengthy extracts from reports from bodies such as Amnesty International, the International Crisis Group, Integrated Regional Information Networks, Human Rights Watch and the United Kingdom Home Office. Each of the reports was published in either 2012 or 2013.

30    The reports dealt with a range of human rights abuses in Sri Lanka in the period following the end of the civil war in 2009. They included reports of the torture and beating of Tamils by security forces, extra judicial killings, rapes and other sexual violence, imprisonment of Tamils without trial, deaths in custody, and the interrogation and torture of Tamils returning to Sri Lanka after periods abroad. Interspersed amongst the quoted reports were observations made by the migration agent. One of these, referring to an International Crisis Group report of March 2012, noted “the high military presence in Sri Lanka’s Northern Province including military camps and checkpoints as well at shops and vegetable farms operated by the military.” The migration agent continued:

This clearly indicates that the applicant would not be able to live free upon return. Given his time outside the country, it is highly probable he would be subjected to serious harm.

31    The second set of submissions contained what was described as “updated country information”. These submissions extended for some nine pages, most of which contained lengthy extracts from reports published in 2015 by organisations such as the United States Department of State, Freedom from Torture, the Minority Rights Group International and Human Rights Watch. This additional material was said to support the contention that the “situation in Sri Lanka remains precarious and torture remains common” and that “given the applicant’s personal circumstances there is a real chance he would face serious harm upon return to Sri Lanka.”

32    The published reports dealt with ongoing human rights abuses in Sri Lanka by police and security forces including torture in detention facilities.

Ground 1

33    As developed in oral argument CSJ15’s first ground was that the Tribunal had failed to have regard to a relevant consideration. That consideration was identified as the length of time CSJ15 was likely to be held in detention were he to be returned to Sri Lanka. Counsel for CSJ15, correctly, conceded that no submission had been made to the Tribunal that a finding on this question was required or should be made. Nonetheless he submitted that:

It’s submitted that a question that was squarely raised on the material on the claims and also on the material about the situation in Sri Lanka was, given that the Tribunal accepted that the applicant would be detained on arrival for the purpose of questioning and investigations, it was incumbent upon the Tribunal to determine how long he might be detained.

That was an important question. It’s submitted that it was an obvious question even [if] it was implicit rather than explicit. It’s submitted that that was squarely raised and it’s important because if the investigations took longer than the applicant might be in detention for a long period and if he was in detention for a long period, that, in itself, might rise to serious harm or it might be that the length of time that he remained in detention while being investigated might affect and increase his chances of suffering serious harm by assault or other treatment in prison.

34    The question was said to be “obvious” because of the country material which appeared in the written submissions to which reference has already been made.

35    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 19; [2004] FCAFC 263 at [58] the Full Court (Black CJ, French and Selway JJ) said that:

The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

36    Even if it be accepted that the question was an important or obvious one it remains to be determined whether it was one which the Tribunal was bound to take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 (Mason J).

37    The Tribunal had considered the prospect of CSJ15 suffering harm upon his return to Sri Lanka. It considered the issue of his future risk of harm on the basis of being a young Tamil male from the north of Sri Lanka. At [79]-[88] of its reasons, the Tribunal relevantly recorded that:

79.    Having considered independent country information before it including information provided by [CSJ15], the tribunal is of the view that this information indicates that Sri Lankan authorities no longer consider being a Tamil, a Tamil male or even a Tamil male from formerly LTTE-controlled areas gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with a pro-LTTE opinion. The UK Home Office noted in 2012 that “the principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms”.

80.    In the country guidance decision of CJ & Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), the UK Upper Tribunal concluded that the focus of the Sri Lankan government’s concern has changed since the end of the civil war in May 2009 and that the LTTE in Sri Lanka is a spent force. The Upper Tribunal found that the government’s present objective is to identify Tamil activists in the diaspora working for Tamil separatism and to destabilize the unitary Sri Lankan state. The Upper Tribunal concluded that individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state are at risk of serious harm in Sri Lanka. This has informed 2014 UK Home Office policy advice that Tamil ethnicity, past membership or connection to the LTTE does not warrant protection unless an individual is perceived to have a significant role in post-conflict Tamil separatism or appears on an airport “stop list”. These findings further support the view that merely being of Tamil origin or a Tamil from a formerly LTTE-controlled area is not sufficient to give rise to an imputed pro-LTTE political opinion, a real chance of serious harm or real risk of significant harm.

81.    As noted above, the applicant has not claimed that he or his family were ever associated with the LTTE. As set out above, the tribunal accepts that the applicant faced roundups, interrogations and short periods of detention during the civil war, during which he was physically assaulted. For reasons already discussed, the tribunal does not accept that these incidents occurred because the authorities had a particular adverse interest in the applicant, other than the general adverse treatment and suspicion of Tamils in the North during the civil conflict.

…

88.    Having regard to the evidence before it, the tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm due to being a Tamil, a “young Tamil man from the North of Sri Lanka” or specifically Vavuniya or a formerly LTTE controlled area, as a Hindu or due to his actual/imputed political opinion arising as a result of his profile.

(Citations omitted.)

38    It also dealt with the issue of his future risk on the basis of being a failed asylum seeker or returnee from a western country at [89]-[97] of its reasons:

89.    Advice received from DFAT discussed with the applicant at the hearing, indicates that Tamils [sic] returnees to Sri Lanka are subject to the same entry procedures as any other citizen and that Tamils are not “singled out” for special treatment. Country information does indicate, however, that non-voluntary returnees are referred for questioning and criminal and security checks by Sri Lankan authorities. Again, DFAT advises that such checking would occur regardless of ethnicity.

90.    Whilst there are reports claiming that Tamil returnees have been harmed on return to Sri Lanka, other sources contest these claims. In 2012, the UK Home Office noted that these allegations lack substance. Furthermore, reports from the NGO Freedom from Torture identified returnees with an actual or perceived connection to the LTTE. As noted above, the tribunal does not accept that the applicant has or will be perceived to have such a connection in light of evidence that neither he nor his family have any LTTE connections and other findings made by the tribunal earlier in this decision about his profile.

91.    DFAT has advised that it is aware of a small number of torture/mistreatment allegations by returnees but that verification of such allegations is complicated by the fact that many such allegations have been made anonymously, often to third parties. DFAT further noted that:

… there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment … Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.

92.    As noted above, the recent UK Upper Tribunal found in a country guidance decision relating to returnees, that the Sri Lankan government’s focus has shifted post-war and that its objective is to identify Tamil activities in the diaspora. As also noted above, the tribunal does not accept that the applicant fits this profile.

93.    The tribunal’s assessment of the country information before it, including reports provided by the applicant before and during the hearing, is that it does not indicate that all returnees/failed asylum seekers, or all Tamil returnees are at risk or that it is the act of fleeing and seeking asylum abroad that may put an individual at risk. Rather, it appears that individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers may be of adverse interest to the authorities. In light of its findings regarding the applicant’s past circumstances in Sri Lanka the tribunal does not accept that he has a profile of interest and therefore does not accept that the applicant will be of interest to the Sri Lankan authorities upon return.

94.    The tribunal finds that the applicant will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. Taking into account the applicant’s circumstances and profile, the tribunal does not accept that such standard questioning and security checks amounts to serious harm or significant harm as set out in s 36(2A).

95.    Nor is the tribunal satisfied on the evidence before it that there is a real chance or risk that the applicant would be subjected to serious or significant harm during such questioning either upon his arrival in Sri Lanka or at any other time after he is released from detention given that, as noted above, the tribunal does not accept that the applicant has a profile that would be of interest to the Sri Lankan authorities. In making these findings, the tribunal has considered that the applicant was beaten during the questioning in 2010 that it has accepted occurred. However, that incident occurred within a year or so after the end of the civil war. Given the country information set out in his decision regarding the processes for returnees, the types of profiles that are of interest to the authorities and the further passage of time since the end of the civil war, the tribunal finds that the risk that the applicant will be beaten or face other serious or significant harm while being questioned by authorities is remote.

96.    The tribunal therefore does not accept that the applicant would face a real chance or risk of serious or significant harm as a result of being a failed asylum seeker or returnee from a western country or because he travelled to Australia.

97.    The tribunal also does not accept on the evidence before it that the applicant would face a real chance or risk of serious or significant harm due to the period of time he has spent abroad since September 2010.

(Citations omitted. Emphasis added.)

39    It is clear from these passages that the Tribunal had well in mind CSJ15’s avowed concern for his welfare should he return to Sri Lanka. In dealing with this question it had regard to the country information submitted by CSJ15 and other information, gleaned from its own resources, which it discussed with CSJ15 at the hearing. This information, in some instances, came from the same sources such as the United Kingdom Home Office. As the Tribunal acknowledged, some of the information contained in the quoted reports was contradictory. The reports also suggested that the circumstances likely to confront returnees had varied over the period since the cessation of the civil war.

40    It was a matter for the Tribunal to determine what country information it would accept and what weight it would accord to such material: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] (Gray, Tamberlin and Lander JJ); VQAB v Minister for Immigration [2004] FCAFC 104 at [26], [32] (Beaumont, Weinberg and Crennan JJ); VWFW v Minister for Immigration [2006] FCAFC 29 at [63] (Lander J, Gray and Kiefel JJ agreeing).

41    Having assessed the country information the Tribunal concluded that a distinction was to be drawn between returnees, who because of their profile might be of adverse interest to the Sri Lankan authorities on the one hand and those without such a profile, such as CSJ15, who were unlikely to be of interest to the authorities, on the other.

42    This reasoning, in turn, led to the finding by the Tribunal (at [94]) that CSJ15 “will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT.” That DFAT advice was summarised in the Tribunal’s reasons at [89]. It involved referral of the returnee for questioning and criminal security checks by Sri Lankan authorities.

43    It is evident from paragraphs [94] and [95] of the Tribunal’s reasons that the references to “detention” are to the holding of non-voluntary returnees for the purposes of this questioning and criminal and security checks. The length of any such detention could not be predicted with any certainty. What is tolerably clear, however, is that the “detention” being referred to is not imprisonment for some offence but holding in custody until the questioning and checks were completed. During this period, the Tribunal held, there was no a real chance of CSJ15 being subjected to any serious or significant harm.

44    In dealing with CSJ15’s claims relating to his apprehended return to Sri Lanka the Tribunal did take into account the possibility that he might be detained. It accepted country information which supported the view that a period of detention for the purposes of questioning CSJ15 and undertaking various checks on him would be likely. Although the Tribunal did not attempt to predict the length of any such detention, it was satisfied that no serious harm would be inflicted on him whilst the entry procedures were undertaken. As a person who is not likely to be of adverse interest to the local authorities there was nothing in the country information on which the Tribunal relied to suggest that the standard procedures would be so prolonged as to themselves constitute serious harm in his case. In these circumstances, and in the absence of any temporal claim made by CSJ15, there was no obligation on the Tribunal to speculate about the length of the routine detention faced by CSJ15.

45    Ground 1 must fail.

Ground 2

46    CSJ15’s second ground alleged that the FCC erred in failing to find that the Tribunal’s decision was legally unreasonable.

47    This ground focussed on the violence inflicted on CSJ15 in 2010 and the finding, to which reference has already been made, that he would not face a real chance or risk of serious or significant harm upon his return to Sri Lanka at the present time.

48    The Tribunal accepted that CSJ15 had resided with his aunt in Nelukulam between 2006 and 2010. He had then returned to his home village. At [71] and [72] the Tribunal recorded its findings that:

71.    The applicant has claimed that 10-15 days after returning to his home town, he was asked to attend an SLA camp during which time he was beaten and questioned about his whereabouts for the previous four years. Given evidence of continued monitoring of Tamils in the North after the war ended in May 2009 and noting that this incident would have occurred only approximately 1 year or so after the war, the tribunal is willing to accept as plausible that this incident occurred. It accepts that the applicant may have been questioned about where he had been for the last four years, why he was working near Menik Farm and asked if he had provided support for the LTTE. Again, given that the war had only concluded fairly recently, the tribunal is willing to accept that the applicant was beaten during this questioning. It further accepts that the applicant was released after his parents came to the camp. It is willing to accept that the applicant may have been told that he needed to report if or when called for an inquiry to a larger SLA camp.

72.    The fact that the applicant was, on his evidence, not detailed for long and released into the care of his parents indicates that the authorities did not consider him to be of any significant adverse interest. The tribunal finds on the evidence before it that he was asked to attend the camp and questioned because the SLA may have been suspicious about his absence from the village for four years and wanted further information. The applicant stated that he had to inform the SLA that he had returned to his village. It is not implausible that it took the SLA a couple of weeks to question him about his absence. The tribunal does not accept as plausible that the applicant was dobbed in by someone as there appears to have been nothing to dob him in about. He does not claim to have had any LTTE involvement during those four years or at any other time, nor does he claim anyone in his family was involved in the LTTE. Furthermore, while the applicant may have been questioned about his work near Menik Farm IDP camp, where Tamils from former LTTE areas were housed, the tribunal does not accept on the evidence before it that this would have been a reason for the applicant to be suspected or detained for LTTE involvement. His evidence is that he worked in a government-owned shopping centre.

49    The primary judge’s reasons record, at [45], that in the FCC CSJ15 argued that “given the Tribunal’s finding that he suffered serious harm in 2010, after the civil war ended, its later finding that there was no real chance that he would suffer serious or significant harm if returned to Sri Lanka was unreasonable or illogical.”

50    The primary judge rejected this submission, holding that CSJ15 had not established that the Tribunal had employed irrational or illogical reasoning or had made irrational findings of fact that were not based on probative material. It was not illogical, she held, for the Tribunal to accept that CSJ15 suffered harm in 2010, shortly after the end of the civil war, because of suspicions which had been aroused by reason of his absence from his village for four years as distinct from any suspicion of that he was involved in the LTTE. He had been released into the care of his parents after a short period of time. The primary judge continued (at [51]):

Having found that [CSJ15] was not of adverse interest to the Sri Lankan authorities whilst he was in Sri Lanka, and, having regard to country information, that he did not have an adverse profile because of any activities after he left Sri Lanka, the Tribunal was satisfied that there was no real chance that [he would] suffer serious … harm on return to Sri Lanka.

51    In written submissions, on this appeal, CSJ15 argued that the primary judge had erred in dismissing the unreasonableness ground because:

unless there was very cogent evidence of a deep seated change of culture, then it was not open to the Tribunal to conclude that even if there had been a general change of focus by the authorities on those “who have a profile of interest”, there was no real chance that questioning of [CSJ15] after another period of several years absence would have the same result as previously in 2010, namely detention and beating.

52    As Wigney J observed in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 219; [2016] FCA 516 at [44] legal unreasonableness can be manifested in a number of different ways in the course of administrative decision-making. One of those ways is the reliance on irrational or illogical reasoning by the decision-maker. Not all such reasoning will give rise to a jurisdictional error. As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 649-650; [2010] HCA 16 at [135]:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

53    The Tribunal, in my view, made none of these errors and the trial judge was correct to so hold. The fact that CSJ15 had been taken into custody and severely mistreated in 2010 following a four year absence from his village did not, having regard to the evidence as a whole, establish that the only conclusion open to the Tribunal was that there was a real chance that CSJ15 would be treated in the same way upon return to Sri Lanka in 2017. As has been seen the Tribunal had before it evidence that: CSJ15 had been released into the care of his family after a short period of detention in 2010; he and his family were not perceived by the authorities to be LTTE supporters; Sri Lankan authorities had no ongoing interest in Tamil men simply because they had come from formerly controlled LTTE areas; persons with a similar profile to that of CSJ15 were not now singled out for special treatment upon return to Sri Lanka; and that he would face standard entry procedures involving questioning and security checks but not physical harm. There was, therefore, probative material on which the Tribunal was entitled to rely. Its impugned conclusion was open to it and its reasoning was not illogical or irrational in the sense identified in SZMDS.

54    Ground 2 must also fail.

DISPOSITION

55    The appeal must be dismissed.

56    The Minister foreshadowed an application for costs thrown away as a result of the late change in CSJ15’s notice of appeal. It was agreed that any ruling on costs should await the outcome of the appeal.

57    My provisional view is that costs (including any costs thrown away) should follow the event. If either party wishes to be heard to the contrary an opportunity will be provided.

Associate:

Dated:    11 December 2017