FEDERAL COURT OF AUSTRALIA

ANL16 v Minister for Immigration and Border Protection [2018] FCA 438

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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 30 year old man of Tamil ethnicity who is a Sri Lankan citizen. He arrived in Australia at Christmas Island in late 2012 and on 10 December 2012 applied for a Protection (Class XA) Visa (Visa). In a statement that he gave at the time of his application he claimed that he will be arrested, physically assaulted and possibly killed by authorities working within the Sri Lankan government because; of perceived links that he has with the LTTE; he is a young male Tamil; and he left Sri Lanka illegally. He claims that he is entitled to the Visa pursuant to s 36 Migration Act 1958 (Cth) (Act).

2    On 17 February 2014 a delegate (delegate) of the Minister of Immigration and Border Protection (Minister) rejected the appellant’s Visa application. The appellant then applied to the Administrative Appeals Tribunal (Tribunal) for a review, and on 17 February 2016 the Tribunal affirmed the decision of the delegate. On 11 March 2016 the appellant applied to the Federal Circuit Court of Australia (FCCA) for a review of the decision of the Tribunal’s decision, and on 24 April 2017 a judge of that Court dismissed his application.

3    The appellant then filed a Notice of Appeal to this Court for a judicial review of the decision of the FCCA. The grounds of appeal are:

1.    The learned judge erred in her finding that the Tribunal did assess the appellant’s claims of being a young Tamil fisherman of Catholic faith with imputed political opinion in support of the LTTE, whereas it was clear that the [appellant’s] integer claim of being a Young Catholic Tamil was never assessed by the Tribunal.

2.    The learned judge erred in her finding that it was open to the tribunal to conclude that the appellant’s mother and step father was [sic] released from incarceration in November 2009 by the authorities indicate [sic] they were not involved with LTTE is so illogical and irrational as this conclusion was simply not open on the evidence. (reference drawn from MIAC v SZMDS [2010] HCA 18)

4    The appellant represented himself at the hearing of the appeal with the assistance of an English/Tamil interpreter. He filed no written submissions. Mr Christopher Tran of counsel appeared on behalf of the Minister and filed submissions in support.

2.    THE TRIBUNAL’S DECISION

5    The appellant appeared before the Tribunal and gave evidence in support of his application. He relied, amongst other things, upon two statutory declarations that he had given as well as submissions made on his behalf by his representatives.

6    In his statutory declaration dated 2 December 2012, the appellant says that he was born in the North-Western Province in Sri Lanka, that he is of Tamil ethnicity and that his religion is Hindu. He states that the main reasons for seeking the protection of the Australian government are based on his fear of harm at the hands of the Sri Lankan police service and other government authorities on account of his Tamil ethnicity, because they believe that he is a supporter of the Tamil Tigers and because he left Sri Lanka unlawfully. He states that in early 2009 he was working as a fisherman and travelled to Mullaitivu in the Northern province to go fishing. This was an area controlled by the Tamil Tigers. At around the same time his mother also went to Mullaitivu and married a man who was a known supporter of the Tamil Tigers. After one and a half months of fishing the appellant returned to his home village whereupon members of the Criminal Investigation Department of the Sri Lankan police (CID) went to his house to ask him about his mother and stepfather. They accused him of going to Mullaitivu to help the Tamil Tigers and when he denied this they beat him and threatened to kill him. They also demanded money. They let him go at the end of the night. Two weeks later the CID did the same thing again. Incidents of this type happened about 10 or 15 times from the time that his mother married his stepfather in early 2009 until June 2012, when he left for Australia. His mother returned to his home village after the war ended and members of the CID came to question her several times and, on the third occasion, they beat her. After that, she fled to Kuwait and the appellant and his family continued to be questioned about her whereabouts. As a consequence, the appellant decided to leave Sri Lanka.

7    The Tribunal extensively reviewed the materials that were available to it and referred to the evidence given by the appellant, as well as the details of interviews that the appellant had provided upon his entry into Australia and to the delegate.

8    The Tribunal decided that some of the claims advanced by the appellant were not credible. First, it did not accept that the appellant and his co-workers had gone to the area around Mullaitivu for one and a half months in January and February 2009 as he claimed. During that time, the LTTE was engaged in very heavy fighting in that area and was being forced back into its base in Mullaitivu. The appellant would have had trouble approaching Mullaitivu. The appellant initially said that at that time they had not felt that there had been any big problems in the area where they had been fishing and that as soon as problems had started they had returned home. He subsequently said that he had left the area after one and a half months and that this was only because his co-workers had been talking badly about him and his mother because of her second marriage.

9    Secondly, the Tribunal noted the documentary evidence that indicated that in November 2009 the appellant’s mother and stepfather had been permitted to leave the relief village where they had been staying. The documents produced relating to the permission to leave suggested to the Tribunal that the Sri Lankan government had formed the view that his mother and stepfather were not involved in the LTTE. The Tribunal observed, on the basis of country information to which it referred, that the fact that they were housed in a relief village indicates that they were regarded by the government as internally displaced persons and not as people involved in the LTTE. As a consequence the Tribunal did not accept that the appellant’s stepfather was a known supporter of the LTTE.

10    Thirdly, the Tribunal regarded it to be relevant that at his entry interview into Australia he said that he had never been arrested or detained by the police and that the police have not had an impact on his day-to-day life in Sri Lanka. The appellant responded by saying that at the time of the entry interview he had no idea what he should say. His representatives also submitted that because of his history with the authorities in Sri Lanka he found it difficult to trust the officers of the Department who interviewed him and that accordingly he had not provided a full account of why he had left Sri Lanka until after he received independent legal advice. However, the Tribunal considered that there is a distinction between giving a less than full account of events and giving inconsistent evidence and concluded that the inconsistency in his evidence affected the appellant’s overall credibility.

11    The Tribunal stated that the difficulties that it had in accepting the appellant’s claim that he went to Mullaitivu in early 2009, and that his stepfather was a known supporter of the LTTE, made it difficult for it to accept his claims that he was repeatedly detained and tortured by the CID about his mother and stepfather and about why he had gone to Mullaitivu, or that whenever the CID came to the village they would demand money or liquor. The decision records that when the Tribunal pointed out these difficulties to the appellant, he affirmed his story and added that in 2010 he had suffered an injury to his genitals during one of the incidents when he was detained. The Tribunal recorded that no medical evidence of these injuries had been adduced and that in any event the existence of injuries would not demonstrate that they had been incurred as a result of being beaten by the police.

12    As a result of these matters, the Tribunal did not accept the appellant’s claims set out above. Nor did it accept that the appellant’s mother had ever been questioned or beaten by the CID or that either the appellant or his mother had ever been suspected of being involved in or having links with the LTTE.

13    The Tribunal considered the appellant’s claim that he would be the subject of discriminatory treatment as a young male Tamil, but referred to country information that indicates that there is no law or government policy which hinders access to state protection on the basis of religion or race, and that states that no reported cases over the last few years indicate that people have been denied access to legal remedies based on their race or religion. It also had regard to country information provided by the Australian Department of Foreign Affairs and Trade about the return of failed asylum seekers to Sri Lanka. The Tribunal accepted that the appellant will be charged under the Immigrants and Emigrants Act with offences relating to his illegal departure but noted that country information indicates that as at July 2015 no returnee who has merely been a passenger on a people smuggling boat has been given a prison sentence for departing Sri Lanka illegally, but that fines have been issued. The Tribunal expressed the view that the arrest for illegal departure, brief detention, release on bail and fine is the result of the enforcement of a law which applies generally in Sri Lanka, and the Tribunal did not accept, on the evidence available, that there was a real chance that the appellant would be singled out, or treated differently for one or more of the 5 Convention reasons from anyone else who may have departed Sri Lanka illegally.

14    The Tribunal concluded that it did not accept that there is a real chance that the appellant will be arrested, assaulted, abducted, tortured, killed or otherwise persecuted for reasons of his race as a Tamil, his membership of the particular social groups of young Tamil males or failed asylum seekers or any political opinion imputed to him. It stated that it had considered the totality of the appellant’s circumstances and the cumulative effect of the circumstances. Nor did the Tribunal consider that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

15    As a consequence, the Tribunal concluded that the appellant does not satisfy the criterion set out in either ss 36(2)(a) or 36(2)(aa) of the Act.

3.    THE FEDERAL CIRCUIT COURT DECISION

16    On 11 March 2016 the appellant applied for orders setting aside the decision of the Tribunal. At the hearing the appellant represented himself. He relied upon the following grounds for his application:

1.    The Tribunal erred and made a jurisdictional error by not assessing the [appellant’s] claim cumulatively of being a young Tamil fisherman of Catholic faith with imputed political opinion[s] in support of the LTTE, and his membership of a social group as his stepfather with known links to LTTE.

2.    The Tribunal has not assessed the [appellant’s] integer claims cumulatively.

3.    The Tribunal has not made a finding that the [appellant] was deprived his livelihood due to restrictions imposed in fishing for being a Tamil of his profile and thereby threatened his capacity to subsist under section 91R(2)(e) of the Migration Act 1958 (Cth).

4.    The Tribunal misconstrued, and its assertion that the [appellant’s] mother and stepfather was released from incarceration in November 2009 by the authorities indicate that the Sri Lankan government formed the view that they were not involved with LTTE, is not supported by evidence.

17    The learned primary judge identified each of the grounds relied upon and provided a summary of the appellant’s personal circumstances and the claims that he advanced in support of his entitlement to the Visa.

18    The primary judge considered that ground 1 amounted to an impermissible application for a merits review of the decision of the Tribunal. Further, she noted that at no point had the appellant made a claim to be Catholic and made no claim to fear persecution because of his Catholic religion. Indeed, in his entry interview and first statutory declaration the appellant claimed to be Hindu. In addition, the primary judge reviewed the reasons of the Tribunal and concluded that the findings upon which it based its rejection of the claims advanced by the appellant were open to it on the evidence and that the Tribunal had dealt with each and every one of the claims made by the appellant and with each of the integers of those claims. Accordingly the primary judge rejected ground 1. For the same reasons, she rejected ground 2.

19    The primary judge accepted the Minister’s submission that ground 3 had never been advanced before the delegate or the Tribunal and that there was nothing to suggest that the claim now made was a substantial, clearly articulated argument relying on established facts such as would warrant consideration before the primary judge. Accordingly ground 3 was rejected.

20    The primary judge also rejected ground 4. She considered that there was clear evidence before the Tribunal supporting its conclusion that the release of the appellant’s mother and stepfather from incarceration in November 2009 indicated that the Sri Lankan government had formed the view that neither was involved with the LTTE.

4.    THE GROUNDS OF APPEAL

1.1    Introduction

21    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).

1.1    Ground 1 - failure to consider a claim

22    In ground 1 the appellant contends that the primary judge erred in finding that the Tribunal did assess the appellant’s claim to be a young Tamil fisherman of Catholic faith when it is clear that the appellant’s integer claim of being a young Catholic Tamil was never assessed by the Tribunal.

23    This ground proceeds on a false premise, namely that there was a claim made by the appellant before the delegate or before the Tribunal to the effect that he was a person of Catholic faith. In reality, the learned primary judge found that the appellant had not advanced such a claim and that accordingly the Tribunal could not have erred in failing to consider it.

24    It is apparent from the materials in the appeal that the primary judge was correct in her conclusion. Indeed, far from claiming that he was of the Catholic faith, in both his first statutory declaration and his entry interview the appellant said that he was a Hindu. Accordingly, ground one is dismissed.

1.2    Ground 2 - unreasonable finding

25    In ground 2 the appellant contends that the primary judge fell into error in concluding that it was open to the Tribunal to find that the appellant’s mother and stepfather were not involved with the LTTE because they were released from incarceration by the authorities in November 2009.

26    As stated in BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 at [40], [41] (per Collier, Murphy and Burley JJ):

 It is settled that even wide discretions must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously: Starke J in House v The King (1936) 55 CLR 499 at 503, Crennan and Bell JJ in Minister for Immigration v SZMDS (2010) 240 CLR 611 at [121]. To that extent, “illogicality” or “irrationality” in administrative reasoning sufficient to give rise to jurisdictional error means that the decision is one at which no rational or logical decision maker could have arrived on the same evidence: SZMDS 240 CLR 611 at [130]. As Crennan and Bell JJ further observed in SZMDS 240 CLR 611:

131.    … But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

It is also settled that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (at [63] per Hayne, Kiefel and Bell JJ, at [26]-[28] per French CJ and at [88]-[92] per Gageler J). As French CJ observed in that case (at [30]) a distinction may arguably be drawn between rationality and reasonableness, as not every rational decision is reasonable. In broad summary, legal unreasonableness may include a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process, or a conclusion that the decision is arbitrary, capricious or without “common sense” or lacks an evident and intelligible justification: Li 249 CLR 332 at [28], [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44].

27    As I have noted above, the Tribunal reasoned that the fact that the appellant’s mother and stepfather had been in a relief village and were then released from it tended to show that they had not been involved in the LTTE. The Tribunal cited country information dealing with mass detention of Tamils after the end of the war, and the process of screening people so detained to identify LTTE members and their supporters. In evidence before the Tribunal (and the primary judge) was a document which indicated that the mother and stepfather were in a relief village.

28    It was not irrational or illogical for the Tribunal to consider the evidence submitted by the appellant which suggested that both his mother and stepfather had been in a relief village, regarded as displaced persons and released, and draw upon country information to determine that a decision had been made that they were not involved in the LTTE. Plainly, the screening processes used by the authorities have some bearing on the likelihood that, at least at the time of their release, they were not regarded with suspicion. The question of the weight to be given to such a consideration is a matter for the decision maker. I see no error on the part of the learned primary judge in rejecting this ground of appeal.

5.    DISPOSITION

29    In light of the conclusions that I have expressed above, the appeal must be dismissed and the appellant must pay the Minister’s costs.

Associate:

Dated:    4 April 2018