FEDERAL COURT OF AUSTRALIA

AVR15 v Minister for Immigration and Border Protection [2018] FCA 737

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent’s costs, fixed in the sum of $2,795.

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

REASONS FOR JUDGMENT

BARKER J:

1    The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection (class XA) visa under the Migration Act 1958 (Cth).

2    The appellant is a 26 year old male citizen of Sri Lanka, of Tamil ethnicity and Hindu faith. He arrived in Australia in August 2012, as an irregular maritime arrival. His wife and daughter remain in Sri Lanka.

3    In his application for protection, made in April 2013, the appellant claimed he feared mistreatment or harm including harassment, interrogation, abuse and death based on an imputed pro-Liberation Tigers of Tamil Eelam (LTTE) opinion; an imputed political opinion of being against the Eelam People’s Democratic Party (EPDP); his Tamil ethnicity; being a failed asylum seeker from a western country; and being a young Tamil man from a northern province.

4    The appellant’s protection visa application was refused by the delegate on 1 October 2013.

5    He then applied for review of the delegate’s decision in the Tribunal, which affirmed the refusal decision in April 2015.

6    The appellant applied for judicial review in the Circuit Court in May 2015. This application was dismissed by a judge of the Circuit Court on 20 December 2017, on the basis no jurisdictional error was disclosed.

7    The appellant now appeals from the judge’s decision on the following grounds:

Ground of appeal

The Federal Circuit court failed to find, in respect of the [Tribunal] that the [Tribunal] declined its jurisdiction to me on the basis of ground stated in my Federal Circuit Court Application.

Particulars of my grounds:

I still rely on the grounds and the particulars stated in my Federal Circuit Court Application for the judicial review with the Federal Court of Australia.

I have not retained a lawyer and barrister to represent me in this court yet. I will provide further particulars of my grounds and /or other grounds and particulars after I have obtained a Barrister’s opinion.

8    As explained below, in the Circuit Court the appellant alleged the Tribunal applied a wrong test or took into account irrelevant considerations when assessing his claim for complementary protections under s 36(2)(aa) of the Act.

9    To understand this ground it is necessary to consider how the appellant’s protection visa application was dealt with by the delegate, the Tribunal, and the judge.

DELEGATE’S DECISION

10    In his statutory declaration submitted with his protection application, the appellant described an incident in early 2008 in which officers from the Criminal Investigation Department (CID) came to his house and questioned him and instructed him to attend the Kudathanai camp.

11    He said he knew he needed to follow the orders, so went to the camp and was interrogated for two and a half hours regarding his knowledge of his cousin (who the appellant later confirmed was a member of the LTTE). The appellant claimed he was interrogated by the same CID officers roughly a fortnight later and that they again came looking for him the following month.

12    When the appellant next reported to the camp, he claimed, he was threatened that he would be shot if he lied.

13    The appellant also claimed that in 2009 he signed a petition opposing the company he worked for taking sand from a nearby sand forest. His supervisor was angry with him for having signed the petition. The company was owned by the EPDP.

14    He said, the following year, he found out that a man who had also signed the petition was shot and killed by masked men, and he had no doubt the men were from the EPDP and were angry about people opposing one of their company’s actions.

15    In 2011, according to the appellant’s statement, two other colleague who had signed the petition received letters indicating they would be killed. It was after this incident that the appellant tried to leave Sri Lanka, however the agent he gave his passport and paid money to disappeared, meaning the appellant was not able to leave the country at this point.

16    Later in 2011, and again in 2012, the appellant claimed he was approached by Sri Lankan army officers who beat him. After the first assault, the appellant made a complaint to the army and was issued with an apology. He said he believed he was targeted merely due to his Tamil ethnicity.

17    As part of his visa application, the appellant attended an interview with the delegate in September 2013. He was accompanied by his migration agent.

18    In the delegate’s decision record, dated 1 October 2013, reference is made to submissions made on behalf of the appellant at the interview.

19    In assessing the appellant’s claims, the delegate did not accept that he would be the only family member questioned about their cousin. Based on the distance between the appellant and his cousin’s villages, their age difference and the long period since they had had contact, the delegate also did not accept that the appellant would have been of any further interest to the CID after he was initially questioned.

20    Further, the delegate found that there was no information provided to support the proposition that the appellant’s cousin was involved with the LTTE.

21    In relation to the claim regarding the petition, the delegate accepted that the appellant signed the petition and that his colleague was shot, however was not satisfied that this occurred based on the petition which had been signed 18 months earlier. Similarly, the delegate was not satisfied that the threat letters were sent to the appellant’s colleagues as claimed.

22    Despite considering that the incidents with the Sri Lankan army occurred, the delegate was not satisfied the harassment amounted to serious harm or persecution. Further, the delegate held that people of Tamil ethnicity were not necessarily at risk of being targeted and subjected to serious harm amounting to persecution, based on their ethnicity alone.

23    The delegate referred to country information regarding the situation of people of Tamil ethnicity in Sri Lanka, those with suspected links to the LTTE and returned Tamil failed asylum seekers from a western country. In reference to this information, the delegate found that the appellant did not face a well-founded fear of persecution.

24     The delegate also concluded that there was not substantial ground for believing that the appellant faced a real risk of significant harm, pursuant to s 36(2)(aa) of the Act, if he were removed from Australia to Sri Lanka.

TRIBUNAL’S DECISION

25    The appellant applied for review in the Tribunal in October 2013.

26    The appellant’s representative sent written submissions to the Tribunal in January 2014, prior to his attending a hearing before the Tribunal, which referred to the appellant’s claims, regarding both protection and complementary protection, and provided supporting country information. The appellant’s submissions also made reference to his expression of interest in returning to Sri Lanka in 2012, after receiving news that his daughter was very ill. He submitted that shortly after, his family dissuaded him from returning as it was not safe.

27    He attended hearings before the Tribunal on 21 January 2015 and 17 March 2015, at which time the appellant was represented by a migration agent and added a new claim of fearing harm on the basis of having left Sri Lanka illegally. He also sought to clarify his claims in regard to his cousin, in that the cousin had been a member of the LTTE.

28    The appellant also provided submissions on 11 March 2015, which outlined details regarding a number of cousins, who had been killed or disappeared, as well as an uncle who were members of the LTTE and their respective involvement. The submissions also referred to potential credibility issues stemming from this late disclosure of information, however stated that the lateness was because the appellant “genuinely believed that his family members’ association with the faction would consequently lead to an incorrect assumption by the Australian government of his involvement” and because he “could not risk the information being communicated to the Sri Lankan government, as he was afraid it would cause harm to his young family in Sri Lanka”.

29    The Tribunal considered post-hearing submissions made by the appellant which further addressed his claims and credibility, including in respect of the impact of trauma and regarding issues raised by the Tribunal concerning a lack of detail provided during his entry interview. The appellant contended he was not encouraged to disclose a detailed account of his protection claims during this interview. It was submitted that it was unreasonable for the Tribunal to “pass blame” on the appellant for failing to provide extensive information during the entry interview, given his personal sensitivities.

30    The Tribunal, however, was not satisfied that the appellant was a credible witness, and affirmed the delegate’s decision to refuse to grant the appellant a protection visa. In reaching its conclusion, the Tribunal referred to two Department of Foreign Affairs and Trade (DFAT) reports regarding Sri Lanka and, despite the appellant’s criticisms of these reports, found they provided credible and recent information.

31    It was not satisfied that the appellant had a well-founded fear of persecution based on being a young Tamil male from the north of the country, despite accepting that the incident with the Sri Lankan army officers in 2011 had occurred. The Tribunal was not satisfied, however, that he was attacked due to his ethnicity.

32    The Tribunal considered that the appellant had stated that neither he, nor his immediate family, were supporters of the LTTE. Coupled with its concerns regarding the appellant’s credibility in not raising earlier his claims regarding his extended family’s involvement with the LTTE, the Tribunal was also not satisfied in regard to his claims based on his perceived pro-LTTE opinion.

33    In relation to his claims in respect of the EPDP, the Tribunal noted that the appellant had continued to work for the company until he left Sri Lanka, and did not claim to have received threats or suffered harm from the EPDP. It was, therefore, not satisfied he had a well-founded fear of harm due to signing the petition and having an associated perceived political opinion.

34    The Tribunal accepted the appellant would face arrest on charges of illegal departure if he returned to Sri Lanka and that the conditions in jail in Sri Lanka were poor. However, it considered at [66] of its decision record that, given the 2015 DFAT report which indicated that returnees would not be subjected to mistreatment during processing at the airport after their return, it was not satisfied that:

… if the applicant returned and faced questioning, arrest and detention and including in jail conditions for a short period, pending a bail determination, that he faces a real chance of serious harm as a result of the non discriminatory enforcement of a law, or laws of general application relating to him having illegally left Sri Lanka.

35    Finally, the Tribunal concluded that, based on the “reasons already considered” it was not satisfied under s 36(2)(aa) of the Act that there were substantial grounds for believing as a necessary and foreseeable consequence of the appellant’s removal to Sri Lanka that he would be subjected to significant harm.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

36    On 25 May 2015, the appellant sought review of the Tribunal’s decision, pursuant to s 476 of the Act.

37    He filed an amended application in August 2015, which stated:

1.    The Tribunal applied the wrong test and/or asked itself the wrong question in assessing whether detention conditions amounted to significant harm as contemplated by s36(2A) and fell into jurisdictional error.

PARTICULARS

a.    At [69] the Tribunal was not satisfied that the detention conditions including overcrowding and poor conditions generally that the applicant would likely face in jail for a short period amount to significant harm; and

b.    The definition of degrading treatment does not have a qualitative assessment of time.

2.    The Tribunal made relevant consideration, however, made a mistaken conclusion when assessing whether detention conditions amounted to significant harm asn contemplated by s36(2A) and fell into jurisdictional error.

PARTICULARS

a.    At [66] the Tribunal accepted that jail conditions in Sri Lanka are poor which constitutes conditions that could cause extreme humiliation;

b.    At [66] the Tribunal found that the Immigrants and Emigrants Act was a law of general application and therefore an intended law that providing deterrence to illegal departure;

c.    At [69] the Tribunal accepted that the applicant will face arrest charges of illegal departure if he returned to Sri Lanka; and

d.    At [69] the Tribunal made the mistaken conclusion that detention conditions including overcrowding and poor conditions generally that the applicant would likely face in jail for a short period amount to significant harm as contemplated by s36(2A).

e.    The [Tribunal] failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958. The [Tribunal] failed to take into account the PAM3 Protection Visas complimentary protection guidelines when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment. (ARS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2135).

38    The appellant was not represented at the hearing in the Circuit Court. He was assisted by a Tamil interpreter. At the hearing the appellant stated that he had applied to the Court to check if the interpreter had correctly and adequately interpreted what he had said to the delegate, as well as for the Court to check whether the rejection of the delegate was correct. The judge held that there was no jurisdiction to review the delegate’s decision in this regard and that the requests did not reveal legal error on the part of the Tribunal.

39    As to the appellant’s stated first ground of review, the judge held that the Tribunal considered each of the elements constituting “significant harm” as defined by s 36(2A) of the Act, in reference to the criteria for complementary protection contained in s 36(2)(aa) of the Act. His Honour held that, on the evidence before the Court, it was reasonably open to the Tribunal the make the findings it did.

40    Referring to particular (b) of the appellant’s first ground, the judge stated that it was not clear what the Tribunal was said to have done wrong, such as to reveal jurisdictional error. His Honour found that the appellant’s reliance on WZAPN v Minister for Immigration and Border Protection and Another (2014) 229 FCR 477; [2014] FCA 947 was misconceived, noting that this case had been overturned on appeal in the High Court of Australia in Minister for Immigration and Border Protection v WZAPN and Another; WZARV v Minister for Immigration and Border Protection and Another (2015) 254 CLR 610; [2015] HCA 22.

41    As to the second ground, the judge set out paragraphs [66] and [69] of the Tribunal’s decision record. His Honour considered that this ground of appeal mischaracterised the Tribunal’s analysis and findings, sought impermissible merits review and did not disclose jurisdictional error.

42    The judge considered that the Tribunal understood its obligation to comply with Ministerial Direction 56 and s 499 of the Act and had made comprehensive and extensive references to the appellant’s submissions, which relied on the Procedures Advice Manual (PAM3) guidelines. The judge also considered that the facts of the case were distinguishable from ARS15 v Minister for Immigration & Anor [2015] FCCA 2135, upon which the appellant relied.

43    While the appellant’s grounds of appeal did not refer to it, his Honour also noted that the Tribunal’s consideration of the appellant’s complementary protection claims were consistent with the High Court’s reasons in SZTAL v Minister for Immigration and Border Protection and Another; SZTGM v Minister for Immigration and Border Protection and Another (2017) 347 ALR 405; [2017] HCA 34. The judge found that the Tribunal was aware that the element of “intent” in the consideration of complementary protection required intention to cause the actual result in question, and no legal error was revealed in the Tribunal’s decision record in that regard.

44    The judge therefore held there was no jurisdictional error apparent on the grounds advanced, and dismissed the application.

APPEAL TO THIS COURT

45    The appellant now appeals from the judge’s decision by a notice of appeal filed on 4 January 2018 which lists the following ground of appeal:

Ground of appeal

The Federal Circuit court failed to find, in respect of the [Tribunal] that the [Tribunal] declined its jurisdiction to me on the basis of ground stated in my Federal Circuit Court Application.

Particulars of my grounds:

I still rely on the grounds and the particulars stated in my Federal Circuit Court Application for the judicial review with the Federal Court of Australia.

I have not retained a lawyer and barrister to represent me in this court yet. I will provide further particulars of my grounds and /or other grounds and particulars after I have obtained a Barrister’s opinion.

46    On 7 May 2018, the appellant filed an outline of written submissions, which states:

I forward this written submission in support of my Federal Court application filed in 2018.

I still rely on the grounds and particulars stated in my Federal Circuit Court Application.

The following ground and particulars were not made out when I filed my Federal Circuit Court Application.

The [Tribunal] erred in not being satisfied that I had the risk profile of a real or imputed connection to the LTTE as identified in the 2012 UNHCR guidelines as a person at risk in Sri Lanka. The [Tribunal] did not accept the evidence regarding my cousin who was a member of the LITE and did not accept that I was placed at real risk. I last saw my cousin in 2006; I was cleared by the CID in May 2008; and I got passport without difficulty. The [Tribunal] was not satisfied about my claims that other extended family members belonged to the LTTE: the [Tribunal]'s Decision Record dated 20 April 2015 at paragraph 64.

I understand that this court review is not a merit review and it cannot admit any new evidence but I have a good case on the facts before the [Tribunal].

I trust that this Honorable Court reads all my materials before the [Tribunal] and gives me a judgment.

Dear Honorable Judge, please show mercy and compassion on me as I believe that the [Tribunal]'s decision is not lawful, is not fair and is not valid.

47    On 16 May 2018, the Minister filed an outline of submissions in support of his contention that the appeal be dismissed with an order for costs fixed pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth).

48    In his submissions, the Minister contends that by his sole ground of appeal, the appellant simply disagrees with the primary judge’s findings and does not identify any potential error in his Honour’s reasons. The Minister notes that the appellant, through his particulars, simply seeks to re-agitate his grounds pleaded in the first instance.

49    As to the appellant’s statement that he had a “good case on the facts” before the Tribunal and requests that this Court consider all his material before the Tribunal before giving judgment, the Minister submits that, despite admitting that he understands this Court in not permitted to undertake merits review, this is what he in fact asks for.

50    In this light, the Minister submits that the appeal ought to be dismissed for the following three reasons:

(1)    the appellant’s ground of appeal fails to identify appellable error on the part of the judge, and it should not be left to this Court on appeal to review the judge’s reasons for decision to attempt to identify such an error;

(2)    to endorse the appellant’s request to review the Tribunal’s decision would be to impermissibly reduce the Circuit Court’s proceedings to a “preliminary skirmish”, citing Flick J in SZVBT v Minister for Immigration and Border Protection (2017) 72 AAR 1; [2017] FCA 355 and BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095, which approach should be firmly rejected; and

(3)    in any event, the judge’s findings were correct.

51    An affidavit of Ms Elodie Jane Cheesman, a lawyer representing the Minister, made 16 May 2018, was relied upon in support of the Minister’s application for costs, fixed at the amount of $2,795.

52    At the hearing, the appellant made oral submissions emphasising the above outline of submissions.

53    The Minister particularly emphasised the judge’s reasoning in the Circuit Court dismissing the two grounds of appeal in that Court, on which the Minister relied and submitted were correct.

CONSIDERATION

54    As will be seen on a closer examination of the sole ground of the appeal in this Court and the terms of the written and oral submissions made by the appellant, there are some differences between the two.

55    To the extent that the appellant now seeks to contend that the Tribunal erred in finding that Australia did not owe him protection obligations pursuant to s 36(2)(a) of the Act, that was not a ground of judicial review in the Circuit Court and the appellant should not now be allowed to raise it.

56    It is plain, from his submission, that the appellant does misunderstand the role of this Court in an appeal like this. This Court’s appellate function is to ascertain whether the decision of the judge of the Circuit Court reveals any error, and does not involve reviewing the merits of the Tribunal’s earlier decision.

57    Thus, I must refuse to countenance that portion of the submissions made by the appellant concerning the Tribunal’s earlier factual decision-making.

58    In any event, the Tribunal expressly dealt with the significance of the 2012 UNHCR guidelines and the appellant’s relationship with his cousin in its decision-making. Nothing relevant was left unconsidered by the Tribunal.

59    So far as the appeal repeats the ground of judicial review that failed in the Circuit Court, I have set out in some detail above the reasoning of the judge in rejecting the related two grounds of judicial review advanced before the judge.

60    As the judge reasonably said, particular (b) of ground 1 is not clear, but owed itself to what North J said in the subsequently overruled decision in WZAPN. See [40] above.

61    I consider particulars (a) and (b) of ground 1 should probably be understood as related.

62    Ground 1 is also related to ground 2. It is said, respectively, that a wrong test was applied in applying the significant harm factor under s 36(2A) of the Act, and that the related fact finding was “mistaken”.

63    In substance, I consider that the appellant seeks to contend that the Tribunal erred by not considering his detention in Sri Lanka on return would amount to “significant harm”.

64    However, as the judge held, the Tribunal properly understood its obligations to comply with Ministerial Direction 56 and s 499 of the Act and PAM3. It found against the appellant on the factual circumstances of his case. The facts of his case were different from those that arose in ARS15, and so ARS15 does not determine the outcome in this case.

65    Also, as the judge pointed out, in SZTAL, where the High Court considered the operation of the complementary provisions of the Act, the subjective circumstances of detention, of which the appellant effectively complained in the particulars provided to ground 2 in the Circuit Court, are not relevant to and do not support a claim for complementary protection in circumstances such as the present. Temporary detention on return to Sri Lanka, and less than desirable prison conditions (by Australian standards), is not sufficient to constitute “significant harm” for complementary protection purposes.

66    As a result, neither ground 1 nor ground 2 of the application to the Circuit Court, or the sole ground of appeal in this Court, is made out.

67    As a result the appeal should be dismissed with costs.

68    I am satisfied, having regard to the affidavit of Ms Cheesman, that costs should be fixed in the sum of $2,795, rather than assessed at a later date. The costs are in a reasonable sum, less than what they are likely to be assessed and time is saved in finalising costs now.

CONCLUSIONS AND ORDERS

69    The Court orders:

(1)    The appeal be dismissed.

(2)    The appellant do pay the first respondent’s costs, fixed in the sum of $2,795.

Associate:

Dated:    23 May 2018