FEDERAL COURT OF AUSTRALIA

AYY15 v Minister for Immigration and Border Protection [2018] FCA 130

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or as assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court handed down on 17 November 2016 which rejected the appellant’s application for judicial review of a decision made by the Refugee Review Tribunal (as it was then) (the “Tribunal”) dated 14 May 2015. The Tribunal’s decision was that it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).

2    The appellant is a citizen of Sri Lanka and a Tamil who had sought a Protection (Class XA) visa from a delegate of the first respondent (the “Minister”). On 10 December 2013, the Minister refused to grant that visa. On 27 December 2013, the appellant lodged an application for review with the Tribunal.

Background

3    The appellant represented himself before the Tribunal hearing on 13 May 2015. The Tribunal referred to the department’s file relating to the appellant, the material referred to in the Minister’s decision, and otherwise identified at par [20] of its reasons for decision the other material it had considered.

4    At par [6] to par [18] of its reasons, the Tribunal set out the relevant criteria for application under s 36(2)(a) and s 36(2)(aa). The appellant does not dispute those criteria.

5    The appellant gave evidence before the Tribunal and was found to be a credible witness. The Tribunal accepted that the appellant’s father had been killed by the Sri Lankan Navy in 2001. It accepted that in or around 2005 the Liberation Tigers of Tamil Eelam (the “LTTE”) had begun a campaign of conscripting able-bodied Tamil males to be soldiers, and that the appellant, as the oldest in his family, feared he would be so conscripted. The Tribunal accepted that in mid-2005 the appellant had moved to Qatar and had worked there as a barber. It also accepted the appellant’s claim that in 2009 the LTTE forcibly recruited his sister and forced his brother to assist it to relocate equipment and supplies. His brother was subsequently hit by shelling and killed. His sister was admitted to hospital in April 2009 after she was shot during fighting. The Tribunal also accepted that the remaining members of the appellant’s family were relocated to an internally displaced person (“IDP”) camp.

6    The Tribunal found that the appellant returned to Sri Lanka in 2010 to support his family. The family was subsequently released from the IDP camp. The Tribunal accepted that the Army and the Sri Lankan Criminal Investigation Department (the “CID”) then separated the family and questioned them about their movements during the Civil War. The appellant was asked if he had sent money to the LTTE and the Tribunal accepted that the Army recorded his information and then released him. Subsequently, in or around November 2011, the CID questioned the appellant about his family and his time in Qatar. They told him that they had reason to believe that he had gone to Qatar to fund the LTTE and told him not to depart the district without notifying them. The Tribunal accepted that the appellant was forced to sign documents in Sinhalese, which he did not understand. Finally, the Tribunal accepted that the CID would routinely question the appellant about his movements and require him to provide records of people he interacted with and also warned him that if he withheld information he would be severely punished. Ultimately, the appellant fled Sri Lanka illegally in 2012.

7    Having regard to this material, the Tribunal considered whether the appellant would now, or in the reasonably foreseeable future, be of adverse interest to the Sri Lankan authorities and seriously or significantly harmed due to perceived links with the LTTE and his family. The Tribunal found as a matter of fact that the chance that he is, or will be so harmed, is remote. At par [39] of its reasons for decision, the Tribunal set out why it had formed that view. Those reasons were summarised by the learned primary judge at par [7] of the judgment of the Federal Circuit Court (AYY15 v Minister for Immigration & Anor [2016] FCCA 2911 at [7]):

The Tribunal gave reasons for making this finding, which are helpfully summarised in the outline of submissions filed on behalf of the first respondent (which accurately reflect the findings of the Tribunal) as follows:

11.1    The applicant was never detained or harmed by the Sri Lankan authorities and they had ample opportunity to detain him from November 2011 to his departure in mid-2012 if they seriously suspected him of being involved with the LTTE.

11.2    The applicant lived abroad from 2005-2010 which would have been apparent to the authorities, and he was never actually involved in the LTTE.

11.3    The war ended in 2009 and while his siblings were forced to join the LTTE, neither of his siblings had a long or high profile involvement in the LTTE, and it had occurred a significant time ago.

11.4    The applicant did not indicate that anything had happened since he left Sri Lanka in 2012 that would make him concerned about his safety.

11.5    While the RRT accepted that the applicant was forced to sign documents in Sinhalese that he did not understand, it was speculative that this would mean that he was still of adverse interest given the unknown nature and content of the documents and given the applicant had never been detained when the authorities had the opportunity to detain him.

11.6    The RRT also took into account that the applicant was told not to leave the area without reporting and that he did so, but the RRT found that this factor did not outweigh all the other considerations that strongly indicated he would not be of continuing adverse interest.

In reaching its conclusion, the Tribunal had regard to the Department of Foreign Affairs and Trade (“DFAT”) Thematic Report, “People with Links to the Liberation Tigers of Tamil Eelam”, 3 October 2014 and the United Nations High Commissioner for Refugees (“UNHCR”), “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012. This country information indicated a generally improved situation for Tamils since the ending of the war in 2009 with the UNHCR stating that there was no longer a presumption of eligibility for Tamils. The Tribunal recorded that the DFAT report had stated that harassment of Tamils in day-to-day life has generally eased since the ending of the conflict. The Tribunal also had regard to country information reports provided by the appellant’s registered migration agent.

8    The Tribunal concluded that, based upon the individual circumstances of the appellant and the overall weight of the country information, the appellant did not face a real chance of persecution on account of his Tamil race. The Tribunal further found that, based on the same material, the appellant did not face a real chance of persecution now, or in the reasonably foreseeable future, as a failed asylum seeker. The Tribunal also considered the risk of detention in Sri Lanka that the appellant might face because he illegally departed Sri Lanka. The Tribunal decided that any resulting possible “short-term detention, questioning or imposition of a fine” did not amount to significant harm: par [55].

9    The Tribunal finally considered the appellant’s individual circumstances cumulatively and found that he did not face a real chance of persecution in the reasonably foreseeable future, for the purposes of s 36(2)(a) or 36(2)(aa). It found that the appellant’s fear of persecution was not well founded.

Proceedings Before the Federal Circuit Court

10    By application filed in the Federal Circuit Court on 9 June 2015, the appellant sought judicial review of the Tribunal’s decision. The learned primary judge set out the five grounds of review at par 9 of the reasons for decision below. Paragraph [9] states:

The applicant has filed four grounds in support of his application which are as follows:

1.    The Tribunal found the applicant is a credible witness, but fell into jurisdictional error when it found that he would not be of continuing adverse interest to the authorities despite being left area (sic) without reporting to them as instructed. Such finding was not supported by evidence. Please refer to page 10 last dot point of the RRT decision record. (CB 253)

2.    The Tribunal did not assess the applicant’s integer claim of facing persecution at the hands of the authorities for leaving the area without reporting to them.

3.    The Tribunal accepted the applicant was forced to sign documents in Singhalese but trivialised the consequences and by doing so not assessed this piece of information and fell into jurisdictional error.

4.    The Tribunal has not assessed another integer claim and in particular his father and siblings association with LTTE and its impact on him.

5.    The Tribunal has not assessed the applicant’s claimed cumulatively and thereby fell into jurisdictional error.

The learned primary judge found that the first ground was in the nature of merits review and therefore impermissible. The second ground of review was found to be misconceived because the Tribunal had assessed the appellant’s claim of the possible persecution at the hands of the authorities for leaving the district without reporting to them. The third ground of review was rejected because it again amounted to merits review. The Court rejected the fourth ground on the basis that the Tribunal did take into account the appellant’s father and siblings and their association with LTTE. It decided that its finding on this matter was open to it on the material before the Tribunal. It finally rejected the fifth contention that the Tribunal had not assessed the appellant’s claim cumulatively.

11    The Federal Circuit Court dismissed the appellant’s application.

Appeal Grounds

12    By notice of appeal dated 6 December 2016 the appellant appealed the decision of the Federal Circuit Court to this Court. That notice of appeal disclosed two suggested errors namely that:

(a)    the Federal Circuit Court finding that the appellant would not be of continuing interest to the authorities in Sri Lanka despite him having left without reporting to those authorities as instructed, was illogical and irrational;

(b)    the Federal Circuit Court erred in concluding that the Tribunal had assessed the appellant’s claim cumulatively.

13    On 7 May 2017 the appellant filed an outline of written submissions. In those submissions he contended that the finding of the Tribunal outlined in ground (a) above was “not open on the evidence” and “there is no logical connection between the evidence and the inferences and conclusion drawn by the decision maker”. The appellant referenced the judgement of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. The appellant further submitted:

In the light of the … overwhelming evidence accepted by the Tribunal, the finding by the Tribunal … that the chances of the appellant being seriously or significantly harmed is or will be remote is so untenable and amounts to jurisdictional error.

In the outline of written submissions, the appellant sought leave to amend his grounds of appeal by adding an additional ground of appeal. The additional ground was a claim that the Tribunal had failed to consider the country information submitted by the appellant. At the hearing of this matter on 15 February 2018 I gave the appellant leave to rely upon this new ground. In the appellant’s outline of written submissions, it was contended that I should infer that these materials could not have been considered, as the Tribunal handed down its decision the day after the hearing.

14    Finally, the written submissions of the appellant invoked the decision of this Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556. Following a dismissal of an appeal from that case by the High Court ((2017) 91 ALJR 936) this ground of appeal was not pursued.

Consideration

15    In my view the appellant’s first ground is not made out. In SZMDS, Crennan and Bell JJ said at par [130]:

In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

In my opinion it was open on the evidence for the Tribunal to decide that, in all the circumstances, the warnings communicated by the Sri Lankan CID in 2011 to the appellant did not satisfy the criteria for the grant of a protection visa pursuant to either s 36(2)(a) or s 36(2)(aa). In my opinion, it was plainly a matter taken into consideration by the Tribunal, but of itself was not sufficiently persuasive. The learned primary judge was correct to conclude at par [11] of the reasons below that the Tribunal’s conclusion must be considered “in the context of the conclusions preceding it and the Tribunal was entitled to give such weight to the evidence led by the applicant as considered appropriate in all circumstances”.

16    At the hearing, the appellant expressed the view that he could not reconcile, on the one hand, his subjective fear and the Tribunal’s findings as to his credibility with, on the other hand, the Tribunal’s conclusion that the fear of persecution was not well founded. His complaint in this regard is misconceived because it overlooks the objective element of the requirement that there be a well-founded fear of persecution. In CNC15 v Federal Circuit Court of Australia [2017] FCA 1540, Charlesworth J said at par [23]:

It is well established that the requirement that there be a well-founded fear of persecution contains both subjective and objective elements. There must be a subjective fear of being persecuted, and the fear must be objectively well-founded: “it must not all be in the mind; there must be a sufficient foundation for that fear”: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396 (Dawson J).

It was therefore open for the Tribunal to conclude that there was no sufficient foundation for the appellant’s fear.

17    The second ground of appeal invites the Court to conclude that the Tribunal could not have considered and taken into account the country material presented by the appellant’s migration agent. I reject that submission. Paragraph [20] of the reasons of the Tribunal sets out the material to which the Tribunal member had regard. It expressly includes the submission of the appellant’s migration agent dated 23 March 2014 which contained the very material that the appellant complains was not taken into account. There is, therefore, no basis for concluding that the material was not considered as part of the Tribunal’s preparation for hearing. Doubtless the material was read and considered before the hearing. For these reasons the primary judge’s decision was not infected by any legal error.

Conclusion

18    The appeal is dismissed with costs, as agreed or as assessed.

Associate:

Dated:    21 February 2018