FEDERAL COURT OF AUSTRALIA

AIC15 v Minister for Immigration and Border Protection [2018] FCA 774

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant is a citizen of Sri Lanka who arrived in Australia and made an application for a Protection (Class XA) visa (“visa”) under s 65 of the Migration Act 1958 (Cth) on 13 November 2012. By this appeal, the appellant appeals the judgment of the Federal Circuit Court of Australia delivered on 5 December 2017 and published as AIC15 v Minister for Immigration and Anor [2017] FCCA 2985.

2    By that decision, the primary judge rejected the appellant’s application for judicial review of a decision made by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) to affirm the decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a visa.

3    In the proceedings before the Federal Circuit Court, the appellant had been represented, at least at an early stage. Before the primary judge five grounds of appeal were agitated, the content of which I will address below.

4    By his Notice of Appeal to this Court, the appellant has identified one ground of appeal. That ground, as best as I can make of it, asserts that the decision of the Tribunal was neither logical nor rational. No particulars are given in the Notice of Appeal.

5    The appellant appeared before me today not legally represented, but assisted by an interpreter. He was not able to provide any particularisation of his appeal ground, nor was he otherwise able to express any basis in support of his appeal. All that he did say was that the Tribunal had made its decision based on country information and that so many things are happening in Sri Lanka now.

6    In what I perceive to have been a belated application for the appeal to be adjourned, the appellant said that he did not have the capacity to point out to the Court what were his claims, and asked for an adjournment of the hearing so that he might come again better prepared. He said he could not afford a lawyer. There was no justification for an adjournment and I rejected that application.

7    None of the grounds of appeal that were agitated before the primary judge are agitated before me. Nevertheless, I consider it appropriate, including because the appellant had the benefit of legal representation for part of the Federal Circuit Court proceeding, that I should take account of the grounds agitated below and give those matters some consideration in the disposition of this appeal. The Minister’s submissions set out a useful summary of each of the five grounds agitated below and how each was dealt with by the primary judge. That summary states as follows:

(a)    Ground 1 alleged that the Tribunal had erred by failing to give the appellant a chance to comment on country information. The Court held that the Tribunal was not required to give such an opportunity, in light of s 424A(3)(a) of the Migration Act 1958 (Cth) (Act). The country information was information "not specifically about the applicant or another person".

(b)    Ground 2 alleged that the Tribunal failed to consider a statutory declaration filed by the appellant, or failed to engage in an active intellectual process of considering the information in the statutory declaration. The Tribunal had referred to the statutory declaration in the hearing and in its decision, though it had noted on both occasions that it did not have access to the document. The Court below held that, nonetheless, the Tribunal had considered the information in the statutory declaration, when it put that information to the appellant. There was nothing additional from the document that had not been understood by the Tribunal or put to the appellant. In addition, the appellant, on notice that the Tribunal did not have the document, had the opportunity (which he took) to file further submissions after the hearing. A reference to an incorrect date by the Tribunal did not amount to a failure to consider. As such, the Tribunal properly considered the relevant information and afforded the appellant procedural fairness.

(c)    Ground 3 was understood by the Court below to assert that the Tribunal had failed to consider whether Sri Lankan departure laws were applied discriminatorily against Tamil Hindus (and, hence, the appellant). The Court held that the Tribunal had properly considered whether the relevant laws were applied in a discriminatory way. To the extent that there was a complaint about the individual and cumulative consideration of the appellant's claims, the Court below was not satisfied that any error had been made.

(d)    Ground 4 alleged that the Tribunal had failed to consider whether the appellant's name would identify him as a Hindu. The Court below held that no claim had been made to the Tribunal to that effect. Further, the Court below accepted that the Tribunal had found, in any case, that Hindus were not targeted for harm in Sri Lanka because of their religion. Accordingly, even if the appellant was identified by his name, that would not have led to any risk of harm

(e)    Ground 5 alleged that the Tribunal erred by failing to ask the appellant whether the Tribunal officer administering the oath prior to the appellant giving evidence had mentioned the possibility of swearing on the Bhavagad Gita. This ground arose because the appellant, before giving his evidence, swore an oath on the Bible instead of the Bhavagad Gita when offered the choice between giving an affirmation or swearing an oath on "any religious book". The Tribunal later gave some weight to the fact that the appellant had sworn on the Bible and not the religious text of his own religion, though it did accept that the appellant was Hindu. The Court below held that there was no error in the Tribunal's failure to ask whether the Tribunal officer had mentioned that the Bhavagad Gita was available. The appellant was given a choice about swearing on any religious book. There was no obligation on the Tribunal to identify the range of particular books that could be used. Further, the Tribunal had given the appellant three chances to explain why he had sworn on the Bible rather than the Bhavagad Gita. And lastly, the Tribunal had in any event accepted that the appellant was Hindu. There was, therefore, no error in the Tribunal's actions

8    In my view, the primary judge, in a considered and comprehensive decision, dealt with each of the grounds raised below and did so free of error. There is only one matter which, having read the reasons of the Tribunal caused me some concern. I raised that concern with the Minister’s counsel.

9    In its reasons, the Tribunal at [69], referred to the fact that when the appellant was sworn in to give evidence before the Tribunal, he made an oath on the Bible rather than on the Bhagavad Gita. That seems to have occurred in the following circumstances which were recorded by the Tribunal at [60] as follows:

I asked the applicant why at the beginning of the hearing he had taken an oath on the Bible to tell the truth during the hearing, rather than making a solemn promise as a Hindu. He replied that he respected all religions. I asked the applicant why he chose to make a solemn promise on the Bible rather than as a Hindu. He stated that the hearing officer at the beginning of the hearing had given him two options: to make an oral affirmation or to swear on any religious book. I asked the applicant why he then did not swear on the Bhagavad-Gita. He stated that he only noticed that this book was available later during the hearing.

10    That incident caused the Tribunal to make a finding at [69], that the appellant’s willingness to swear an oath on the Bible rather than on the Bhagavad Gita assisted in showing that he and his family were “not committed to expressing their Hindu beliefs by practicing in particular ways”.

11    By reason of the Tribunal’s assessment of the appellant’s lack of commitment to Hinduism, as well as another matter, the Tribunal rejected the appellant’s claim that he wore Hindu markings on his forehead in the past and that, by reason of wearing those markings, he was mistreated at the hands of the Sri Lankan army. The Tribunal’s view that that claim had been deliberately fabricated was then used in support of cascading findings that were made by the Tribunal in relation to other allegations of mistreatment relied upon by the appellant.

12    In my respectful view, the Tribunal’s reliance on the appellant swearing on the Bible, in the circumstances in which that occurred, was inappropriate. No regard was given by the Tribunal to the fact that the appellant was in an environment foreign to him and, given that context, the substance of his evidence that he did not really think he had any other option.

13    Credibility findings are not immune from being affected by jurisdictional error and that is particularly so where, as in this case, the findings made about the appellant’s credibility were critical to the rejection of various claims. Having said that, however, as the Minister rightly contended, the credibility findings made by the Tribunal were founded upon a range of considerations including findings independent of the finding made by the Tribunal that the appellant’s oath on the Bible expressed a lack of commitment to Hindu beliefs. Where an adverse credibility finding is sufficiently supported by independent considerations, as is the case here, any single error in respect of one consideration will not constitute jurisdictional error: MZZYU v Minister for Immigration and Citizenship [2014] FCA 98 at [50] (Bromberg J); MZARY v Minister for Immigration and Border Protection [2018] FCA 374 at [28] (Bromberg J).

14    In the circumstances I do not consider that jurisdictional error or appellable error is demonstrated. The appeal must be dismissed.

Associate:

Dated:    30 May 2018