FEDERAL COURT OF AUSTRALIA

AOP16 v Minister for Immigration and Border Protection [2018] FCA 126

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

GILMOUR J:

1    I made orders on 17 February 2018 at the conclusion of the hearing of this appeal dismissing the appeal with costs. The following are my reasons for doing so.

2    This is an appeal from a decision of the Federal Circuit Court made on 5 February 2016 (Judgment) dismissing the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) and ordering that the appellant pay the first respondent’s costs in a fixed sum: AOP15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2953.

3    In summary, the appellant claimed to fear harm for a reason recognised under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, 1967 (Refugees Convention).

Background

4    The following summary of the background facts draws substantially on the primary judge’s reasons for judgment and the Tribunal’s decision.

5    The appellant is a citizen of Sri Lanka, who arrived in Australia as an unauthorised maritime arrival on 2 July 2012. His application for a Protection (Class XA) visa is dated 26 November 2012. After a delegate of the Minister made a decision to reject the application on 1 July 2013, the appellant applied to the then Refugee Review Tribunal for review of that decision.

6    The appellant’s claims may be broadly summarised as follows:

(a)    The appellant was a Tamil Hindu who had worked as a fisherman in Sri Lanka for five years. Following the Sri Lankan civil war, he and his family had experienced a number of difficulties with Sinhalese people and the Sri Lankan Army.

(b)    The appellant’s brother went to work in Trincomalee in about 2008 and has never returned. In the same year, the appellant’s father was assaulted by the Sri Lankan Army (SLA) and had bad chest pains afterwards. His father returned to Trincomalee in 2012 where he suffered a heart attack and died. The appellant was told that his father had been chased by Sinhalese people and suffered the heart attack as a result.

(c)    The appellant fears returning to Sri Lanka because he will be beaten or killed by the army or the police because he is Tamil and no authorities would stop this from occurring. The appellant fears harm in Sri Lanka on the basis of his race (ethnic Tamil), his imputed political opinion (as a supporter or member of the LTTE), him being an opponent of the ruling party, and his membership of a particular social group (failed asylum seekers returned to Sri Lanka).

Tribunal decision

7    The Tribunal made a decision on 5 February 2016 to affirm the Minister’s delegate’s decision.

8    The key findings made by the IAA are as follows.

9    Certain of the appellant's claimed experiences in Sri Lanka were accepted by the Tribunal, including harassment and monitoring by the SLA, being detained by the SLA on at least one occasion in January 2012, being subject to both verbal and physical harassment by the SLA, and the disappearance of his brother in 2008.

10    Nonetheless, the Tribunal found inconsistencies in the appellant’s evidence, which led it to reject the factual claims upon which the appellant’s claims for protection were based. The Tribunal found, on the basis of the available country information, that:

(a)    neither the appellant, nor any member of his family, had any profile that would make him of any adverse interest to anyone should he return to Sri Lanka;

(b)    there was not a real chance that all Tamils in Sri Lanka would be harmed for reason of their ethnicity or imputed political opinion (including as suspected LTTE supporters or Tamil separatists);

(c)    there was no real chance of the appellant being ‘dobbed in’ to the SLA or the Sri Lankan government, or that he otherwise had a real chance of suffering serious harm for any reason from Sinhalese people, the SLA, or the Sri Lankan government or their supporters; and

(d)    there was not a real chance of the appellant being subject to serious harm due to his illegal departure, being suspected of engaging in Tamil separatism whilst abroad, or as a failed asylum seeker.

11    The Tribunal thus concluded that the appellant did not satisfy the refugees criterion contained in s 36(2)(a) of the Migration Act 1958 (Cth) (Act) as he did not have a well-founded fear of persecution for a Refugees Convention reason, or would be subject to serious harm in Sri Lanka. Moreover, the Tribunal found that the appellant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

The primary judge’s decision

12    On 15 March 2016, the appellant filed an application for judicial review in the Federal Circuit Court, which set out the following ground of review (without alteration):

1.    The Tribunal erred in failing to consider all integers of the applicant's claims.

    Particulars

a.    At [24] the Tribunal accepted the applicant's brother went missing in 2008;

b.    The Tribunal failed to consider whether the brother's disappearance had any adverse consequences for the applicant.

13    The matter proceeded to a final hearing on 31 October 2016. Following the conclusion of the hearing, the primary judge delivered ex tempore reasons for judgment, which were subsequently published.

14    The primary judge held that the Tribunal did not err in the manner alleged in the sole ground raised before the Court because, before the Tribunal:

(a)    the appellant's claim concerning his brother was very limited and he had stated to the delegate that he and his family had no information about the circumstances surrounding his brother's disappearance: Judgment at [11];

(b)    the highest the claim concerning the appellant's brother went was that it 'was an indication that either the [appellant's] family had a profile which attracted adverse attention from the authorities, or was an indication that the [appellant] might suffer harm at the hand of Sinhalese people without protection from the authorities': Judgment at [11]; and

(c)    the Tribunal accepted the appellant's claim that his brother disappeared in 2008 and considered, but was not satisfied of, the two possibilities that could be said to have arisen from that disappearance: Judgment at [12].

15    Thus his Honour concluded that the Tribunal had not failed to consider all of the integers of the appellant's claim regarding his brother's disappearance, and, accordingly, that the application failed to make out any jurisdictional error. Thereupon the application was dismissed: at [15].

The appeal

16    The notice of appeal sets out the following ground of appeal (without alteration):

The Federal Circuit court failed to find, in respect of the Respondent, on 31 October 2016, that the Tribunal declined its jurisdiction to me on the basis of grounds stated in my Federal Circuit Court Application.

The particulars are: Ground one

The Respondent erred in law, with the error being a jurisdictional error, in failing to consider all integers of my claims.

Particulars

The Tribunal accepted my brother went on missing in 2008. The Tribunal failed to consider whether my brother's disappearance had any adverse consequences on me.

Please refer to my Federal Circuit Court application filed with your registry in which I have stated the grounds and the particulars clearly. I still rely on it.

17    The appellant did not file any written submissions.

18    The appellant’s ground of appeal in effect repeats the ground before the primary judge.

19    The appellant's claim regarding the disappearance of his brother first appears in the statement accompanying his protection visa application dated 3 November 2012. In that statement, the appellant sets out the following:

We have constant problems with the Singhalese people. My brother went for work to Trincomalee in about 2008 and has never returned. In the same year my father was assaulted by the army and had bad chest pains afterwards. He also used to go to Trincomalee, but he stopped going. This year, he decided to return. He suffered a heart attack and died. His friends who were with him told us that he had been chased by Singhalese people and had suffered the heart attack as a result.

20    The claim next appears in the delegate's decision record, where the delegate is summarising the content of his interview with the appellant. Relevantly, the decision record states the following:

His brother went to work in Trincomalee in c.2008 and he never returned. In the same year, his father, who also used to travel for work, was assaulted by the army and suffered from bad chest pains as a result. He also suffered harassment by Singhalese people. Due to his experiences, the applicant's father eventually suffered a heart attack and passed away.

He stated that his father and brother were also working as fishermen and they travelled to other areas including Trincomalee and Batticaloa when extra people were needed for fishing. I asked the applicant what happened to his brother. He responded that the family has no information about the circumstances surrounding his death.

21    No reference is made to the appellant's claim regarding his brother in the submissions of the appellant's representative to the Tribunal dated 6 September 2013.

22    The Tribunal's decision record demonstrates that the appellant was given numerous opportunities to further advance his claims and evidence at the hearing held on 28 January 2016. It records the following statements as being made by the appellant about this claim at that hearing:

[24] … The migration agent at hearing said the applicant came from a family with (words to the effect) a known profile in Sri Lanka. It was claimed the brother went missing (which I have accepted he did in 2008, and not 2012 as subsequently claimed); that his father was beaten to death by the SLA in April 2012 (which I have rejected as false) …

[29] At the hearing, the Tribunal put to the applicant the country information it had considered may not satisfy it that almost 7 years after the end of the war, Tamils in Sri Lanka (including in the north or the east) were still targeted for reason of their race or imputed political opinion. The applicant did not agree. He said what had happened to his brother (discussed elsewhere) may also happen to him.

[33] … With respect to the present applicant, at the commencement of the hearing, when asked he said he has been able to maintain fortnightly contact with his mother and wife in Sri Lanka. Even when asked what significant matters were discussed, the applicant said only their well-being, and that his brother is still missing.

[38] … At the Tribunal hearing, the applicant said that around April 2012, his father and brother were travelling to Trincomalee and they were stopped by the SLA. The father was beaten to death on that occasion and the brother fled and had not been seen since.

23    The evidence given on this last occasion is at odds with that given previously both as to the year his brother went missing and that his brother was present in 2012 when his father was allegedly beaten to death.

24    The Tribunal accepted the appellant's claim regarding his brother as presented prior to the hearing, but rejected this new version of events presented at the hearing. In particular, at [24] of the decision record the Tribunal briefly states its acceptance of the appellant's claim that his brother disappeared in 2008, and not 2012, and its rejection of the claim that his father was beaten to death in 2012, and then sets out its finding in detail at paragraph [40] in the following terms:

The Tribunal does not accept the applicant's version of events submitted at hearing. I believe this new evidence was false. The Tribunal accepts the brother went missing in 2008, prior to the cessation of hostilities in May 2009. The Tribunal also accepts that neither the applicant (nor his family) has any idea why the brother went missing, who took him or where he may be. Further, though the issue was discussed, the applicant did not indicate there were any consequences for him or any family member, arising from the brother's disappearance in 2008. The Tribunal is also satisfied the applicant provided this most recent version of events in order to assist his case.

(emphasis added)

25    Having accepted the appellant’s claim that his brother disappeared in 2008, the Tribunal proceeded to consider the risk or chance of harm that the appellant individually would experience on return to Sri Lanka. After considering the appellant's profile, the profile of his family, and relevant country information, the Tribunal found that there was not a real chance or risk that the appellant would be seriously or significantly harmed by Sinhalese persons, the SLA or the Sri Lankan government (or supporters) for any claimed reason.

26    The appellant's claims and evidence before the Tribunal demonstrate that the appellant neither stated nor implied that the disappearance of his brother had any adverse consequences for him which were relevant to his protection visa application. Not only is this the case generally but it is particularly so given that he failed to raise any such concerns despite the issue being directly raised with him at the hearing, as indicated in [40] of the decision record as set out above.

27    It was for the appellant to advance the claims and evidence that he wished in support of his case: Minister for Immigration, Multicultural and Indigenous v Lay Lat (2006) 151 FCR 214 at [76]. The Tribunal was not obliged to prompt or illicit information from him: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58] per Gummow and Heydon JJ. Rather, it was for the appellant to advance arguments in support of his contention that he met the criteria for the grant of a protection visa: Abebe v The Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.

28    It is readily apparent the Tribunal considered the possibility, were he to return to Sri Lanka, of there being adverse consequences for the appellant as a result of his brother's disappearance. However, the appellant's failure to expressly raise any such consequences resulted in it concluding that the existence of certain consequences was not part of that claim. The Tribunal considered whether the disappearance of his brother was an indication of either his family having a profile that attracted adverse attention or was an indication that the appellant might suffer harm from Sinhalese people without protection from the authorities, but found that neither was the case. No other consequence was asserted by the appellant, nor did it arise squarely on the material: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58].

29    The appellant made oral submissions impugning the adverse findings of fact concerning risk of harm to him should he return to Sri Lanka. He also sought to explain why he had given certain evidence as to being mistreated by the SLA which, he said, was in fact incorrect. These attempts at merits review were rightly the subject of objection on behalf of the Minister.

30    The appellant also sought to introduce, over objection, a letter dictated by someone at the behest of the appellant’s mother. It was to the effect that he should not return. I did not receive it into evidence.

31    He also sought to advance in argument that if Sri Lanka’s present President were to be re-elected then he, the appellant, would, together with all Tamils, face persecution in Sri Lanka. Such considerations had already been weighed and rejected by the Tribunal.

32    No appealable error has been demonstrated in the primary judge's finding that the Tribunal dealt with the appellant's claim regarding his brother's disappearance in the manner advanced and the Tribunal was entitled to proceed to make its decision on the claims and evidence before it: SZMMT v Minister for Immigration and Citizenship [2009] FCA 149 at [19].

33    These proceedings were adjourned pending the delivery of judgment by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936. In circumstances where that appeal was dismissed, no question arises as to the correctness of the IAA's complementary protection findings.

Conclusion and orders

34    For these reasons, there will be orders that the appeal be dismissed and the appellant ordered to pay the Minister’s costs, to be taxed if not agreed.

Associate:

Dated:    21 February 2018