FEDERAL COURT OF AUSTRALIA

BAZ15 v Minister for Immigration and Border Protection [2018] FCA 230

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal from a judgment of the Federal Circuit Court of Australia (FCCA) (see BAZ15 v Minister for Immigration and Border Protection [2016] FCCA 1929) raises a single ground of appeal. That ground is whether the FCCA erred in not finding that the Refugee Review Tribunal (now the Administrative Appeals Tribunal (Tribunal)) failed to comply with s 425 of the Migration Act 1958 (Cth) (the Act) by failing to give the appellant a reasonable opportunity to give evidence and present arguments about a claim that he sought to advance at the Tribunal hearing, namely that his cousin had recently been murdered.

2    Shortly before the hearing, the appellant abandoned ground 2 in his notice of appeal, which raised a claim of apprehended bias against the primary judge.

Summary of background facts and appellants claims for protection

3    The appellant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia in August 2012 as an unauthorised maritime arrival. He applied for a protection visa. The appellant said he was from the north of Sri Lanka and that, as a child, he lived in areas under LTTE control until 2008, when those areas then came under the control of the Sri Lankan Army (SLA). He said that he and his family moved around to avoid the fighting. He said that his older brother was shot and killed by the SLA in 1998. He said that in around 2001, he was detained and tortured by the SLA on suspicion of buying supplies for the LTTE. He said he moved to Dubai in 2002 and returned to Sri Lanka after 2002 when a cease fire was in force.

4    The appellant said that after returning to Sri Lanka from Dubai, he had operated a business which hired out tractors, and that many civilians were killed before the end of the war, including the driver of one of his tractors and the driver’s child. He said that one of his tractors was stolen, apparently by persons associated with the SLA and that he was beaten when he complained.

5    He said that a cousin who had been adopted by him had disappeared, and that he and his aunt complained to human rights organisations. He said that while searching for the missing cousin on 10 July 2012, he was stopped by the army and taken towards a camp. He said that he managed to escape in fear of his life.

6    He further claimed that, because the SLA could not find him, they took one of his brothers and told the brother that he would be released only if the appellant surrendered himself. The brother was in fact released after three days, partly because of the family’s pleas and also because the SLA was concerned that the foreign organisation for which the brother worked would take action or report them.

7    The appellant said that he suspected the SLA had killed his missing cousin and that they did not want this to be discovered, which was why the SLA were after him. He then left Sri Lanka.

8    The appellant’s protection visa application was rejected by the delegate on 20 December 2013. He sought a review in the Tribunal.

The Tribunal proceedings

9    On the day of the Tribunal hearing, the appellant instructed his migration agent to inform the Tribunal that another cousin of his had recently been shot dead and that the funeral was being held in Sri Lanka that day. The migration agent stated that this matter could be explored more thoroughly during the course of the hearing, and that it had a direct bearing on the appellant’s case. Although the appellant was upset, his agent said that the appellant wanted the Tribunal hearing to proceed.

10    A transcript of the Tribunal hearing was in evidence.

11    At several points in the hearing the appellant attempted to raise the issue of his cousin's recent death. At 382 of the Appeal Book (AB) the following exchange occurred after the appellant gave evidence about being suspected of transporting goods for the LTTE;

MR MILLAR:    So they were trying to take action against you; what were they doing?

INTERPRETER:    When they came to Australia, it’s my cousin who was looking after my wife and children (indistinct) and today only, 2 o’clock in the afternoon, they are going to cremate the body.

MR MILLAR:    Could you just please answer my question. You said that because you had transported goods and someone's daughter in an LTTE area, the army thought you were supporting them and were trying to take action against you. I want to know what, therefore, were they doing?

12    At AB 398, after the Tribunal member put country information to the appellant, and asked him what he wanted to say, the appellant said through the interpreter;

INTERPRETER:    March 2015, my brother had been shot dead (indistinct) and he is being cremated today at 2 o’clock.

MR MILLAR:    Yes. Anything else?

INTERPRETER:    It’s in Tamilwin, you can look at it, it’s in Tamilwin.

MR MILLAR:    Do you want any other comments? Okay, pause please.

13    Shortly thereafter, the Tribunal clarified that it was the appellant’s cousin, and not his brother, who was shot. The transcript records the appellant as again stating that his cousin was “being cremated today”.

14    After the hearing, the appellant’s agent wrote to the Tribunal and submitted that the claim that the appellant’s cousin had been short three days before the hearing was not explored at hearing and that since this matter was relevant to the appellant’s fears of being harmed in Sri Lanka, the Tribunal should put to the appellant for his comment any concerns it had on this matter.

15    In a decision dated 18 May 2016, the Tribunal affirmed the delegate’s decision. The Tribunal identified many inconsistencies in the appellant’s claims, including:

(a)    changes in his evidence concerning the events surrounding the disappearance of his adopted cousin;

(b)    confused evidence about the appellant’s abduction in 2012;

(c)    the difficulties the appellant said he had with the SLA in relation to his tractors; and

(d)    although he claimed in his statutory declaration that his brother was shot dead by the army in 1998, at the hearing he said that this occurred in 2008.

16    The Tribunal concluded that in the light of its concerns regarding the appellant’s credibility, it disbelieved all the claims he made as to his history.

17    In its reasons for decision, the Tribunal directly addressed the appellant’s claim made just before the hearing concerning the recent death of his cousin. It is desirable to set out [47]-[51] of the Tribunal’s reasons for decision (footnote omitted):

47.    Just prior to the hearing the representative advised that the applicant had a cousin who had been shot dead (a few days before the hearing was held). In support of this claim a media article was submitted from a publication called the Tamil Diplomat naming a certain individual as a former member of TELO as having been shot dead by unidentified people. The representative submitted that the death of this cousin was a new claim in relation to the review even though no evidence was put forward as to how this related to the applicant’s fear of harm in Sri Lanka.

48.    At the hearing, when questioned as to what difficulties he had with the Army before the occasion in July 2012 when he claims they tried to abduct him, the applicant mentioned transporting the daughter of an injured person through an area which used to be controlled by the LTTE and the Army threatening that he was involved with that group and taking action against him. When the Tribunal asked the applicant what that action was, he said that after he went to Australia his cousin was looking after his wife and children and he was to be cremated on the hearing day. When again asked what action was taken against him, the applicant then related his account about his tractors and the Army taking one of them. He said nothing further about yhis cousin and his relationship to the applicant’s protection claims.

49.    Further in the hearing the Tribunal discussed country information with the applicant (set out further below), in particular, the profiles of those at risk of serious harm. When invited to comment on this, the applicant said that his cousin was shot dead on 3 March 2015 and was to be cremated on the same day as the hearing. Nothing further about this cousin was advanced by the applicant or the representative. After the hearing the representative, by letter dated 20 March 2015, submitted that the shooting of the cousin was relevant to the applicant’s fear of harm in Sri Lanka but said nothing more about that. The representative requested that if the member had concerns about the matter that these be put to the applicant.

50.    Possibly the applicant is seeking to in some way link this person he describes as a cousin to the adverse interest he claims Sri Lankan authorities hold in him. The only evidence before the Tribunal about this is a media report that a person of a certain name was shot dead. The only source of evidence as to how this affects the applicant would be the applicant himself. He could easily have advanced claims about that at the Tribunal hearing including instructing his representative at the hearing about them if indeed there were any such claims. The difficulty for the applicant is that even if he did advance claims about this individual and how that posed a risk for him, for the reasons given above, the Tribunal would have disbelieved them.

51.    That is because the Tribunal holds significant concerns about the applicant’s credibility which have led the Tribunal to find that he is not a witness of truth. Accordingly, because he has been so substantially discredited as a witness, the Tribunal could not believe evidence from the applicant that this person is in some way involved with (or that his shooting is evidence of) adverse interest held in the applicant by Sri Lankan authorities. Indeed, because the applicant is not a witness of truth, the Tribunal does not believe his evidence that the person referred to in the media article provided is even his cousin (and that he was looking after the applicant’s wife and children after the applicant left Sri Lanka as he had claimed).

The FCCA’s reasons for judgment summarised

18    On the relevant matter, after referring to the extracts from the transcript set out above, the primary judge stated at [18] and [19]:

18.    On the first occasion, the Tribunal was asking the applicant a question about why certain people were trying to take action against the applicant and the applicant, in an unresponsive manner, referred to his cousin who was looking after his wife and children and that at 2 o’clock today they were going to cremate the body. The response was clearly unresponsive. The Tribunal member said:

Could you please answer my question?

19.    The Tribunal member restated the evidence that had been given and went back to the issue of the unanswered question. On no fair reading of the transcript could it be said that the Tribunal member was closing the applicant down in relation to a matter that he was seeking to raise. Rather, the Tribunal member was trying to test and explore with the applicant the evidence that he had given in relation to his claim. The second occasion on which it was alleged the Tribunal had closed down the applicant was after that applicant had been taken to the country information and was asked what he would like to say. The applicant said that in March 2015 his brother had been shot dead and was being cremated at 2 o’clock. The Tribunal member said: “Yes. Anything else?” It was contended that the “Yes. Anything else?” was a direction to address a different topic. I reject that submission. “Yes. Anything else?” was a genuine opportunity for the applicant to expand on any claim he wished to advance relating to his brother.

19    At [21], the primary judge held that the appellant had had a genuine opportunity to expand on his fears or claims regarding this particular cousin.

Disposition of the appeal

20    As at the date of the Tribunal’s decision, s 425(1) of the Act provided:

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

21    This provision was considered in some depth by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. The important principles established in that decision may be summarised as follows:

(a)    a review applicant is entitled to assume, absent any statement by the review tribunal to the contrary, that the issues on the review are those which the delegate considered to be dispositive (at [35]);

(b)    if the issues which arise on the review are considered by the review tribunal to be different from those before the delegate, the review tribunal is required to take steps to draw the relevant issues to the review applicant’s attention (at [35]); and

(c)    it is a matter for the review applicant to establish the claims that are made and it is not useful to speak in terms of “onus of proof”. The Act assumes that issues can be identified as arising in relation to a decision under review and, while those issues may extend to all aspects of a protection visa applicant’s claim, they need not. Significance must attach to the terms of s 425(1) and its reference to the applicant being invited to appear before the Tribunal “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (at [40]).

22    As Ms Laing (who appeared for Minister) submitted, other case law establishes the following relevant principles:

(a)    s 425 does not impose an obligation on the review tribunal “to ensure that an applicant makes the best of the invitation to attend the hearing” (SZTXE v Minister for Immigration and Border Protection [2015] FCA 493; 232 FCR 433 at [18] per Flick J);

(b)    the provision does not oblige the review tribunal to “actively assist the applicant in putting his or her case” (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [36] per Gray, Cooper and Selway JJ);

(c)    the review tribunal is not obliged by s 425 to carry out an inquiry to identify what the review applicant’s case might be (SZNTO v Minister for Immigration and Citizenship [2010] FCA 183; 114 ALD 129 at [34] per Yates J). It is the review applicant’s responsibility to present whatever evidence or argument in support of his or her case, and the review tribunal must then determine whether that case has been made out (Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [187] per Gummow and Hayne JJ); and

(d)    the review tribunal is not obliged “to prompt and stimulate an elaboration which the applicant chooses not to embark on” (Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909 at [58] per Gummow and Heydon JJ).

23    Having regard to these relevant legal principles and the particular facts and circumstances here, I do not accept the appellant’s submission that the primary judge erred in not finding that the Tribunal had breached s 425 by failing to give the appellant a reasonable opportunity to give evidence and present arguments regarding the alleged recent murder of his cousin. On the contrary, in my respectful view, the primary judge was correct to conclude that the appellant had been given a reasonable opportunity to give evidence and present arguments on that issue. There was no obligation on the Tribunal to ask the appellant directed questions in relation to the issue, or to seek more detail about it from the appellant.

24    Having regard to the following matters, I also reject the appellant’s submission that he had been “shut down” or “cut-off” discussing this claim at the hearing, considering:

(a)    the Tribunal was on notice of the claim as a result of the agent’s written submission, which was received shortly before the hearing. At the hearing itself, the appellant first raised the alleged recent death of his cousin in a non-responsive answer. The Tribunal was entitled to ask the appellant to answer the question it had posed;

(b)    the issue of the alleged death was again raised by the appellant in response to a question from the Tribunal concerning the risk of harm to Tamils in particular parts of Sri Lanka. The appellant was invited twice by the Tribunal to elaborate on his answers;

(c)    later in the hearing, the appellant’s representative clarified with the Tribunal member that it was the appellant’s cousin, and not his brother, who had been shot;

(d)    detailed submissions were made by the appellant’s representative at the hearing, which were interrupted at one point by the appellant saying that he was “not in the right mood” because of the imminent cremation of his cousin. The Tribunal told him that he could comment further after the representative had finished her address; and

(e)    at the end of the hearing, the Tribunal invited the appellant to say anything else about his case which he felt had not been covered at the hearing. The appellant responded by saying that he had told his lawyer that his family had gone to a temple to pray because his child was sick. He made no further reference to the recent death of his cousin. He was given a meaningful opportunity to say whatever he wished on that topic.

25    In the light of all these matters, there is no substance in the appellant’s claim that the Tribunal failed to comply with its obligations under s 425(1) of the Act.

Conclusion

26    For these reasons, the appeal should be dismissed and the appellant ordered to pay the first respondent’s costs, as agreed or assessed.

Associate:

Dated:    6 March 2018