FEDERAL COURT OF AUSTRALIA

MZARX v Minister for Immigration and Border Protection [2018] FCA 437

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on proposed grounds 1 and 2 in the Notice of Appeal is refused.

2.    The appeal is dismissed.

3.    The appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a male citizen of Sri Lanka aged 33, who arrived in Australia by boat at Christmas Island on 2 July 2012. He was detained as an irregular maritime arrival, and on 23 November 2012 he made an application for a Protection (Class XA) visa (Visa). In his application he claims that he is entitled to a protection visa pursuant to s 37 of the Migration Act 1958 (Cth) (Act) on the basis of his fears that he would be detained, tortured and may be killed if he returns to Sri Lanka because he is a Tamil, because the Sri Lankan authorities erroneously believe that he is or has been a member of the Liberation Tigers of Tamil Eelam (LTTE) and because he is a failed Tamil asylum seeker.

2    On 16 July 2013 a delegate (delegate) of the first respondent, the Minister for Immigration and Border Protection (Minister), refused the application. The appellant then applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) for a review of the decision, and on 22 January 2015 the Tribunal affirmed the decision of the delegate.

3    On 16 February 2015 the appellant made an application to the Federal Circuit Court of Australia (FCCA) seeking to set aside the decision of the Tribunal. On 7 December 2016 a judge of that Court dismissed the application with costs.

4    On 19 December 2016 the appellant filed a Notice of Appeal from the decision of the FCCA in this Court. The Notice of Appeal contained the following grounds:

1.    The Tribunal accepted that the Applicant would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly [has] not assessed this integer claim and fell into jurisdictional error.

2.    The learned judge erred by holding with the Tribunal that the appellant’s claim was cumulatively assessed but it was not.

3.    The Tribunal erred jurisdictionally by breaching section 424A of the [Migration] Act. It has not given to the appellant clea[r] particulars pursuant to subsection (1) and acted in haste and refused the application. The Tribunal erred and misconstrued the obligation imposed on the Tribunal under the [M]igration Act.

4.    The appellant reserve[s] his right to amend the grounds of appeal when the reason for the learned judge’s decision come to hand.

5    The appeal was heard on 22 February 2018. The appellant filed no written submissions and appeared at the hearing without legal representation, but with the assistance of a Tamil/English interpreter. At the hearing he made no substantive oral submissions. The Minister filed written submissions in advance of the hearing and was represented by Mr Christopher Tran, of counsel.

2.    THE DECISION OF THE TRIBUNAL

6    The appellant appeared before the Tribunal on 27 November 2014 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter and the appellant was represented by a migration agent.

7    The Tribunal set out in full a statement that the appellant made accompanying his Visa application. That statement sets out the claims of the appellant, which most relevantly include the claim that in May 2007 he was rounded up, together with other suspected members of the LTTE, because they were Tamil. He was then held for two months but never charged. The statement provides that during these months he was interrogated about three times a week regarding his alleged association with the LTTE and was routinely assaulted during these interrogations, which lasted between one and one and a half hours.

8    In the beginning of July 2007 he was released after his uncle bribed the police with about Rs.300,000. His uncle then told him that it was no longer safe for him to remain in Sri Lanka, and arrangements were made for him to obtain a passport. On around 19 July 2007 he left Sri Lanka to work in the United Arab Emirates as a cleaner. While he was in the United Arab Emirates he learnt that on around 4 October 2007 his uncle had been abducted by unknown men. His whereabouts remain unknown. A friend of the appellant’s, who had been detained with him in May 2007, was shot and killed on 5 October 2007.

9    In October 2011 the appellant returned to Sri Lanka, thinking that it was safe to do so. However, in November or December 2011 people claiming to be members of the criminal investigation department (CID) went to his family home looking for him. Thereafter he began sleeping at his aunt’s house, which was close by. Shortly thereafter, more men visited his family home and threatened that they would kill him if they found him.

10    In January 2012 he moved to a different aunt’s house. His mother advised him that some policeman visited his family home looking for him on about three or four occasions during this time. After two months, the appellant feared that his aunt’s neighbours would advise the Police or CID that he was living there so, in around March 2012, he moved to live with his cousin. He did not work or leave the house during that time because he was fearful for his life. His mother informed him that members of the police were still looking for him. After three months, he then moved to stay with a different cousin, again not working and confining himself to the house. However, the appellant claims that eventually he could not live discretely anymore, and so left for Australia in fear of his life.

11    The Tribunal made a credit finding that the appellant had falsely claimed that he was detained by the authorities for a two month period between May and July 2007. That finding was made after it had observed a number of inconsistencies between the evidence that the appellant gave at the hearing, the evidence given in his written submissions and statement, and the documents available to the Tribunal at the hearing.

12    In particular, the Tribunal noted the following points. First, that during the hearing the appellant stated that the round up of Tamils was in 2006, when the documentary material that he had submitted indicated that it was in 2007. Secondly, the appellant claimed that when he was held by the police he had been questioned in Sinhalese, a language which he did not understand. The Tribunal did not find it credible that for over two months the appellant would be questioned in a language that he did not understand. Thirdly, the Tribunal observed that the appellant’s passport indicates that he left Sri Lanka on 6 June 2007 and arrived in the United Arab Emirates on 8 June 2007. These dates are inconsistent with the appellant’s version of events. Fourthly, the Tribunal noted that the appellant’s passport was to expire in mid-September 2007 and that country information indicates that the United Arab Emirates requires a passport to be valid for at least 6 months from the date of entry. The appellant’s passport was due to expire prior to that period. When challenged with this, the appellant claimed that the passport was extended by his uncle, prior to his being detained. The Tribunal found that this pre-planning suggests that the extension of the passport was not fortuitous, but rather suggested that the departure of the appellant from the country was premeditated and unrelated to any claimed detention.

13    The Tribunal concluded that the appellant had falsely claimed that he was detained by the authorities after the round up of Tamils in 2007. It did not accept that the appellant had been detained by the authorities in any round up or held for two months or beaten or questioned. It did not accept that arrangements were made for the appellant to be swiftly removed from Sri Lanka to the United Arab Emirates by his uncle or that he was forced to flee Sri Lanka at all.

14    Furthermore, the Tribunal did not accept that, after his return to Sri Lanka in 2011, he was the subject of any interest from the authorities. In this regard, the Tribunal noted that the appellant had returned to Sri Lanka by plane, that he had entered the country past the CID officers stationed at the airport, and that they did nothing to stop or detain him. The Tribunal concluded that the reason why the appellant was permitted to re-enter and had no difficulty upon his return to Sri Lanka is that he is of no interest to the authorities.

15    The appellant claimed before the Tribunal that he would be persecuted on return to Sri Lanka because of: his Tamil race; his actual or imputed political opinion as being someone perceived to be a supporter of the LTTE, holding separatist views or supporting the renewal of hostilities against the Government of Sri Lanka; and his membership of particular social groups, including his being a young Tamil male and failed Tamil asylum seeker. The appellant also claimed that he would be harmed due to his illegal departure from Sri Lanka.

16    The Tribunal considered each of these claims in the context of the country information that was available. It did not accept that the appellant, as a young Tamil male from the North Western Province of Sri Lanka who had no present or historical involvement with the LTTE, faced a real chance of serious harm because of his Tamil ethnicity or because he is a young male Tamil. It found that the appellant is not a person who has been accused of being involved in the LTTE previously and that merely because the appellant is a male Tamil does not equate to an imputed opinion that he is pro-LTTE in the view of the Sri Lankan authorities. The Tribunal did not accept that the appellant faces a real chance of serious harm now or in the reasonably foreseeable future arising from any imputed political opinion.

17    The Tribunal further rejected that the appellant faces a real chance of serious harm as a returning failed asylum seeker from Australia. Whilst it accepted that the appellant would be questioned by the authorities at the airport on his return to establish his identity and entry rights and the circumstances of his illegal departure and return, the Tribunal did not accept that he faces any real chance of being detained for questioning or otherwise targeted for harm because, having regard to the evidence that the Tribunal accepted, it did not consider that the appellant would be of adverse interest to the authorities.

18    Finally, the Tribunal accepted that the appellant had illegally departed Sri Lanka by boat and travelled to Australia. It found that his unlawful departure will be identified by the Sri Lankan Department of Emigration and Immigration and that the appellant may face criminal sanctions due to the manner of his departure. The Tribunal was informed by the appellant that he had not been involved in people smuggling or been previously convicted of any matters. The Tribunal found that punishment, if convicted, could be up to 5 years imprisonment and up to a Rs.200,000 fine but, according to the available country information, the most likely outcome is that the appellant will be required to pay a fine between Rs.5,000 and Rs.50,000 or not much more. The Tribunal found that the appellant may be held pending the provision of personal bail but that the appellant’s family, who are presently in Sri Lanka, will guarantee his bail and thus ensure his quick release. Thus, the Tribunal found that there is only a remote chance that he would spend more than a very short period (of hours or at most a few days) remanded in custody awaiting bail. The Tribunal also found that the chance that the appellant will be sentenced to any term of imprisonment due to his illegal departure is very remote. Thus, the Tribunal found that the very brief remand pending charge and bail would not itself constitute systematic and discriminatory conduct. Accordingly the Tribunal found that the appellant’s status as a failed asylum seeker or returnee does not give rise to substantial grounds for believing that there is a real risk that he will suffer significant harm upon being removed from Australia.

19    Having regard to all the circumstances, both individually and cumulatively, the Tribunal found that the appellant does not face a real chance of serious harm in Sri Lanka for any convention based reason and that he does not have a well-founded fear of persecution for a convention based reason, now or in the reasonably foreseeable future.

3.    THE DECISION OF THE FCCA

20    The appellant represented himself before the FCCA. He sought orders setting aside the decision of the Tribunal based on two grounds. First, that the decision of the Tribunal was “affected by an error of law”; and secondly because he was denied procedural fairness.

21    The learned primary judge observed that no details were given by the appellant in support of either of these grounds. He noted that the Tribunal had identified the claims advanced by the appellant, and that it had expressed concerns about the appellant’s overall credibility. He expressed the view that the Tribunal had addressed each of the bases on which the appellant had claimed to fear harm. The primary judge also acknowledged that the Tribunal addressed complementary protection issues, rejecting the appellant’s contentions in that regard. At [14] he found that no error was discernible in the Tribunal’s reasons.

22    In relation to the ground concerning denial of procedural fairness, the primary judge found that the Tribunal had given the appellant a hearing and had heard his presentation of evidence and argument. He found no error in the approach taken by the Tribunal as set out in its decision which, in the primary judge’s opinion, revealed a careful and well considered approach by the Tribunal to the appellant’s case. Accordingly, the primary judge dismissed the application for judicial review.

4.    THE GROUNDS OF APPEAL

4.1    Introduction

23    I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the Visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the Visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant a Visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).

24    The Minister contends that the grounds of review pursued before the FCCA are different to those raised in the present appeal and that accordingly the appellant requires leave of the Court to pursue these grounds. He submits that leave should be refused as the grounds have no merit and that the appeal should be dismissed with costs.

25    In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588, at [46] and [48], the Full Court said:

… Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

… The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

26    For the reasons set out in more detail below, I consider that grounds 1 and 2 were not raised before the FCCA and that each has insufficient merit to warrant the grant of the leave required. Put another way, had leave been granted to rely on these grounds, in my view, they would have failed in any event. I consider that ground 3 may be regarded to be a subset of the second ground raised before the FCCA (denial of procedural fairness) and, accordingly, leave to rely upon it is not required. However, I consider that the ground has no merit and should be dismissed.

4.2    Ground 1 – failure to assess persecution

27    The first ground of appeal is, in effect, that the Tribunal failed to assess whether the fact that the appellant would be detained for a brief period upon his return to Sri Lanka would result in persecution.

28    The Minister submits, and I agree, that the appellant may be understood in this ground to contend that the Tribunal erred in not considering whether the period during which he would be held in remand would result in persecution which would entitle the grant of a protection Visa pursuant to s 36(2)(a) of the Act.

29    The Tribunal relevantly found that the appellant will be charged under Sri Lankan legal provisions due to his illegal departure from Sri Lanka and that the country information available indicates that those who breach the law by departing illegally are generally held briefly (for hours or at most days) on remand and then bailed pending hearing. The Tribunal found that they then generally face a financial penalty and not a custodial sentence. It further found, having regard to relevant country information, that the Sri Lankan Immigration and Emigration Act applies generally to those who breach its provisions and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. It found that a brief remand pending charge and bail would not constitute systematic and discriminatory conduct and that the requirements of s 91R(1)(c) of the Act are not met. It concluded that there is no real chance that the appellant would be unable to pay any financial penalty imposed for his illegal departure from Sri Lanka and that there is no real chance that he will face serious or significant harm in the reasonably foreseeable future deriving from any legal penalty so imposed. It found that the chance is very remote that the appellant would spend more than a very short period (of hours or at most a few days) remanded in custody awaiting bail on his own reconnaissance after his return to Sri Lanka.

30    Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a noncitizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee, which arise under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol (Convention). Article 1A(2) of the Convention provides that a refugee is a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. Section 36(2)(aa) of the Act provides the complimentary protection criterion whereby if a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. “Significant harm” is defined in s 36(2A) to arise if the non-citizen will be arbitrarily deprived of his or her life, the death penalty will be carried out on the noncitizen, the noncitizen will be subjected to torture, the noncitizen will be subjected to cruel or inhuman treatment or punishment or the noncitizen will be subjected to degrading treatment or punishment.

31    It is apparent from the reasons of the Tribunal that it not only had regard to the likely effect upon the appellant of the application by the Sri Lankan authorities of the Immigration and Emigration Act, it concluded that that Act is not discriminatory on its face or in its intent and does not differentially impact any particular section of the Sri Lankan population. It also found that the chances are very remote that the appellant would be sentenced to any term of imprisonment and that any period in remand would be very short.

32    Accordingly I consider that the prospects of success on this proposed ground of appeal are very slight. No explanation is advanced as to why it was not run below. Having regard to these matters, leave to rely upon it must be refused.

4.3    Ground 2 - cumulative assessment

33    In ground 2 the appellant contends that the primary judge erred in holding with the Tribunal that the appellant’s claim was cumulatively assessed when it was not. This is also a ground that was not raised below.

34    The basis for this ground is somewhat obscure. The primary judge was not asked below to consider whether the Tribunal failed to consider the issues raised by the appellant cumulatively. However, he did endorse the reasoning of the Tribunal as “careful and well considered”.

35    The Tribunal expressed its conclusions at [108] and [109] in terms as having regard to all of the circumstances “both individually and cumulatively”. Having regard to the whole of the reasoning set out by the Tribunal, the objective reader has no basis for concluding that it failed to do so.

36    Accordingly, leave to rely on ground 2 must also be refused.

4.4    Ground 3 – s 424A failure to provide particulars

37    In ground 3 the appellant contends that the Tribunal fell into jurisdictional error by failing to give particulars pursuant to s 424A(1) of the Act and acted in haste in refusing the application. No particulars are supplied to support this ground.

38    Sub-sections 424A(1) and (3) of the Act provide as follows:

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)  invite the applicant to comment on or respond to it.

…

(3)  This section does not apply to information:

(a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)  that the applicant gave for the purpose of the application for review; or

(ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)  that is non-disclosable information.

39    In the absence of the provision of particulars as to the errors alleged, the complaint is at large. However, in reviewing the decision of the Tribunal, the learned primary judge detected no error of law and no denial of procedural fairness. My review of the reasoning of the Tribunal yields no different result. In particular, my reading of the Tribunal’s decision indicates that during the course of the hearing the Tribunal appropriately put the appellant on notice of numerous matters arising from the information, prior to making findings relevant to the appellant’s claims.

40    Accordingly, the appellant has advanced no basis upon which this ground may be made out, and it is dismissed.

5.    DISPOSITION

41    Leave to rely on proposed grounds 1 and 2 in the Notice of Appeal is refused. The appeal is dismissed. The appellant must pay the Minister’s costs.

Associate:

Dated:    4 April 2018