FEDERAL COURT OF AUSTRALIA

CBN17 v Minister for Immigration and Border Protection [2018] FCA 788

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The appellant appeals from orders of the Federal Circuit Court made on 12 December 2017, dismissing an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority), made on 18 April 2017 (CBN17 v Minister for Immigration & Another [2017] FCCA 3123). The Authority affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), not to grant the appellant a Safe Haven Enterprise Visa, subclass 790 (protection visa).

2    For the reasons I explain below, I have made orders to dismiss the appeal and for the appellant to pay the first respondent’s costs.

The procedural history

3    The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia by boat in September 2012, without a visa, and subsequently made an application for a Permanent Protection Visa subclass 866. That application was found to be invalid on the basis that he entered Australia as an “unauthorised maritime arrival” as defined in the Migration Act 1958 (Cth) (the Act) and was prevented by s 46A(1) of the Act from lodging a valid application for a visa while in Australia. On 24 September 2015, following passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) the Department of Immigration and Border Protection invited the appellant to apply for a protection visa.

4    The appellant applied for a protection visa on 5 May 2016. Subsequently he made written submissions to and was interviewed by a delegate of the Minister (delegate). On 6 January 2017 the delegate refused the visa application.

5    The delegate’s decision was then referred to the Authority for review. The appellant was legally represented in the written submissions made to the Authority. On 18 April 2017 the Authority affirmed the delegate’s decision to refuse to grant a protection visa.

6    On 12 May 2017 the appellant filed an application for judicial review of the Authority’s decision in the Federal Circuit Court. Following a hearing on 12 December 2017, in which the appellant was legally represented, the Federal Circuit Court dismissed the application.

7    On 21 December 2017 the appellant filed a notice of appeal to this Court from the judgment of the Federal Circuit Court.

The Authority’s decision

8    The Authority accepted that the appellant is a citizen of Sri Lanka of Tamil ethnicity, and that he lived in the Northern Province of Sri Lanka. It summarised the appellant’s claims as follows:

•    In 1997, just before the applicant’s final exams, he was assaulted by the Sri Lankan Police (SLP) after they attended his house. He was physically assaulted and taken to the police station. Once he was at the station, he was asked whether he knew a number of names. He told the SLP that he did not have any idea who they were and he was physically assaulted. He was placed into a small cell and left there. Two days after he had been arrested he was released from the police station around midday.

•    In 2008 his brother in law disappeared after he had gone out to hire his three wheeler for passenger service and a complaint was lodged with the Human Rights Commission of Sri Lanka.

•    In 2008 he was living in Vavuniya in the Northern Province. During this time he was transporting people using his three wheeler auto to earn a living. He frequently drove people around Vavuniya and to other districts in the Northern Province.

•    During this time the auto rickshaw industry in Vavuniya was quite large and whenever there was a protest or meeting, they invited all of the auto-rickshaw drivers to participate. The protests were held in the vacant land in front of the council building. He frequently participated in a number of them to support his colleagues. As a result, those who were involved in the ‘auto’ industry was scrutinised and were often suspected of working for the [Liberation Tigers of Tamil Eelam (LTTE)].

•    There were many times after he finished work when he would be interrogated by plain-clothed Criminal Investigation Department (CID) officials. They would frequently take him aside and show him photographs of people or give him names and asked whether he knew them. The CID officials would also ask whether he was involved with the LTTE and whether he knew anyone involved with the LTTE.

•    Around 22 August 2008 he was assaulted whilst he was driving. He was in hospital for about 5 days before he was released. He is not certain who did this however he believes that it was members of the EPDP [Eelam People’s Democratic Party] due to his involvement in the meetings and protests.

•    In 2009, he was returning to his auto rickshaw when he was approached by the Special Task Force (STF) who checked his documents and asked whether he was involved in the LTTE. The men from the STF were not happy with his responses as he denied being involved with the LTTE and as a result they started poking him in the crotch with a steel bar. Eventually they allowed him to leave.

•    In around 2012 during a protest against the transfer of Tamil prisoners from Vavuniya to another camp, he assisted members of the Tamil National Alliance (‘TNA’) with transport in his capacity as a taxi driver.

•    In June 2012 one of the auto drivers that he knew was taken into the jungle and cut into pieces. A second auto driver who he was not familiar with was beaten, murdered and thrown into a well.

•    In Vavuniya, gatherings were held in large vacant lots next to the auto stand and he transported people to these gatherings on a fairly regular basis.

•    He owned a small vegetable and grocery shop which was looked after by his wife and closed after he left Sri Lanka.

•    After these incidents, he became very frightened for his life and began to make plans to depart. He fears that if he returns to Sri Lanka he will be detained, interrogated, abused, tortured and/or killed by the Sri Lankan authorities including the CID and the general Singhalese population as he is perceived to be a Tamil from the Northern province of Sri Lanka, a failed asylum seeker, for having departed Sri Lanka illegally and perceived as having connections with the LTTE.

The appellant also claimed that in around August or September 2012 he had assisted members of the Tamil National Alliance with transport during a protest against the transfer of prisoners, at which protest there was an incident involving teargas. Before me the appellant made no complaint in regard to the Authority’s summary of his claims.

The Refugee Assessment

9    Under the headings “Refugee assessment” and “Well-founded fear of persecution” the Authority assessed the appellant’s claim to be a refugee under ss 36(2)(a) and 5H(1) of the Act. The Authority accepted a number of aspects of the appellant’s claims, including that:

(a)    he was assaulted and harassed by the police in 1997;

(b)    his brother-in-law disappeared in 2008;

(c)    that he was an auto rickshaw driver in 2008, attended protest meetings in that regard, and was occasionally stopped and questioned in the streets by Sri Lankan officials during this time;

(d)    he was hospitalised as a result of an assault which he suffered while driving in 2008;

(e)    he was harassed by the Special Task Force in 2009; and

(f)    in 2012 two auto rickshaw drivers, one of whom he knew, were killed.

10    The Authority decided, however, that:

(a)    the 1997 incident involving the police and the 2008 incident resulting in his hospitalisation were isolated events which occurred over a decade apart. It said that the first was a minor, isolated incident which did not amount to the appellant suffering any serious harm. It said that there was no evidence to indicate that the second incident was linked in any way to the first incident;

(b)    there was no evidence to indicate that the disappearance of his brother-in-law had no consequences for the appellant or led to him suffering any serious harm as a result;

(c)    apart from the appellant’s assertions, there was no evidence to suggest that the perpetrators of the assault upon the appellant in 2008 were members of the Eelam People’s Democratic Party. It said that the appellant was the victim of an unfortunate assault for which there could have been a number of reasons;

(d)    there was no credible evidence as to the circumstances of the death of two auto rickshaw drivers in 2012 and such incidents were the result of generalised violence that occurs throughout Sri Lanka; and

(e)    while there may have been a teargas attack at a protest in August or September 2012, the Authority was not persuaded that the appellant was involved in any way or that any such attack had any consequences for him.

11    The Authority did not accept that the appellant has been perceived, or is now perceived to have links or association with the LTTE. It found that he “does not have an adverse profile or any significant history with the Sri Lankan authorities, the CID, the SLA or any other Sri Lankan authority or para-military organisation” and did not accept that he has any actual or imputed connection with the LTTE. Having regard to the UNHCR’s Eligibility Guidelines in relation to the profiles of people at risk of harm and likely to be in need of protection in Sri Lanka, the Authority said that “being of Tamil ethnicity alone, or originating from an area that was previously controlled by the LTTE does not result in the need for international refugee protection.” The Authority did not accept that the appellant faces a real chance of harm as a Tamil male from the Northern Province or on account of his previous experiences and encounters in Sri Lanka.

12    The Authority noted that the appellant departed Sri Lanka illegally in 2012, and said that it was likely that he would be considered to have committed an offence under the Sri Lankan Immigrants and Emigrants Act 1949. It accepted that the appellant may be detained for several hours and questioned, and that it was possible that he would be in police custody at the CID’s airport office for up to 24 hours after arrival before his case could be dealt with by a Magistrate. However, given the appellant’s low profile with respect to the LTTE, the Authority was satisfied that any tension would be for a short period, that he would not face any additional detention, penalty, fine or other harm once he is processed and that any brief detention he faces would not constitute serious harm.

13    The Authority then went on to state (at paragraph 37):

Considering the applicant’s evidence in totality, I am not satisfied that the applicant has a real chance of being seriously harmed as a returnee (voluntary or otherwise), former asylum seeker, a person returning on a temporary travel document or for any of the reasons claimed.

It concluded that the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act and therefore does not satisfy s 36(2)(a).

The Complementary Protection Assessment

14    The Authority then considered the appellant’s claim for complementary protection. This part of the Authority’s decision is central in the appeal and it is appropriate to set out its assessment in total (at paragraphs 40-44):

Under s. 36(2A), a person will suffer ‘significant harm’ if:

•    the person will be arbitrarily deprived of his or her life

•    the death penalty will be carried out on the person

•    the person will be subjected to torture

•    the person will be subjected to cruel or inhuman treatment or punishment, or

•    the person will be subjected to degrading treatment or punishment.

Although I accept that societal discrimination still continues with respect to Tamils in Sri Lanka, the country information also indicates that any discrimination would not constitute significant harm. There is no indication that any discrimination or harassment that the applicant may face would arbitrarily deprive him of his life or result in the death penalty being carried out against him or it would constitute torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

With respect to returnees, although I accept that the applicant may be detained and questioned and a penalty or a fine may be imposed on him on his return to Sri Lanka, on the country information and the evidence before me, I am not satisfied that any such action would constitute significant harm. I am not satisfied that any repercussions that the applicant may face would arbitrarily deprive him of his life or result in the death penalty being carried out against him or would constitute torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

I have found there to be no real chance of the applicant facing serious harm on the basis of his brother in law having been disappeared, participating in protests, transporting members of the TNA, being a failed asylum seeker or any perceived connections with the LTTE. For the same reasons, I am not satisfied there is a real risk of significant harm.

There are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s. 36(2)(aa).

The Federal circuit Court judgment

15    The reasons for judgment of the primary judge (Street J) briefly dealt with the essential aspects of the application before the Federal Circuit Court. The primary judge concisely set out some of the factual background and some of the main claims the appellant made to the delegate. His Honour then dealt with the Authority’s approach to the review material referred to it pursuant to s 473CB and its approach to “new information in exceptional circumstances” pursuant to s 473DD. There is no appeal in relation to the Authority’s refusal to consider some of the new information.

16    The primary judge then addressed the Authority’s consideration of the appellant’s claim under s 36(2)(a) of the Act. His Honour concisely reiterated the Authority’s decision in relation to each of the main integers of the appellant’s claim to have a well-founded fear of persecution, and its conclusion that it was not satisfied that the appellant has a real chance of being seriously harmed for any of the reasons advanced by the appellant.

17    His Honour then summarised the Authority’s consideration of the appellant’s complementary protection claim. Under the heading “Consideration” (at [29]-[30] and [32]) the primary judge concluded:

In relation to ground 1, [the appellant’s lawyer] took the Court to the incidents that the applicant alleged occurred and in particular, the acceptance of part of those incidents in the Authority’s reasons. [The appellant’s lawyer] accepted that the Authority had effectively referred to considering the applicant’s claims cumulatively by reference to the consideration of the applicant’s evidence in totality under the Refugee Convention but submitted that the Authority’s reasons in relation to complementary protection had failed to take into account the incidents that the Authority had accepted had occurred, beyond the limited references identified on one reading of paragraph 43.

The Authority’s reasons are not to be read with a keen eye for error. On a fair reading, the Authority in paragraph 43, picked up the findings that the Authority had made in relation to the considerations under the Refugee Convention claims. It is apparent that that was an assessment in respect of the totality of those claims. For these reasons, no jurisdictional error as alleged in ground 1 is made out.

…

The assessment of whether or not there is a significant risk of harm is one that must take into account the applicant’s claims and evidence, just as must the Refugee Convention claims must [sic] take into account the applicant’s claims and evidence, in the determination of whether there is a real risk of harm under the Refugee Convention. No jurisdictional error as alleged in ground 1 is made out.

The primary judge dismissed the application.

18    I note that the primary judge misstated the test in ss 36(2)(a) and 5H of the Act which requires an assessment of whether there is a real chance of serious harm if the person is returned to his or her country of nationality. There is, however, no appeal in relation to this aspect of the primary judgment and, in any event, the Authority did not so misstate the test.

The appeal

19    The appeal is limited to the Authority’s decision to refuse the appellant’s claim for complementary protection under s 36(2)(aa) of the Act. The notice of appeal contains one broad ground which states (without correction):

The Fcc Judge his Honour committed legal errors jurisdictional when dismissing proceedings. The Judge failed to consider all of the grounds raised in a proper manner.

20    Subsequently the appellant filed written submissions in which he particularised the ground of appeal as it was particularised before the Federal Circuit Court. The appeal ground and particulars are as follows:

The IAA committed jurisdictional error by failing properly consider whether the applicant faced a real chance of serious harm in accordance with the “complementary protection criteria” in section 36(2A) of the Migration Act 1958.

Particulars¶

a.    The IAA committed jurisdictional error by viewing each of the applicant’s claims in isolation rather than considering them cumulatively when concluding whether the applicant faced a real chance of serious or significant harm.

b.    At [10], the applicant claimed that he was physically assaulted and subsequently detained for two days by the Sri Lankan Police (SLP) in 1997.

i.    At [16], the IAA accepted this claim.

ii.    However, the IAA later, at [22], considered that this was an ‘isolated incident’.

c.    The applicant also claimed that, in 2008, his brother in law disappeared after he had attempted to hire his three-wheeler for passenger service.

i.    At [17], the IAA accepted this claim.

ii.    However, the IAA considered that it did not have evidence before it to indicate that [t]his event caused or would cause the applicant serious harm.

d.    The applicant claimed that, during the course of his employment as an auto rickshaw driver, the applicant participated in several protests. As a result, he claimed that he was stopped and questioned by the CID on several occasions and was accused of having LTTE connections.

i.    At [18], the IAA accepted that it was plausible that the applicant was questioned as a result of his Tamil ethnicity and possible imputed association with the LTTE.

ii.    Furthermore, the IAA accepted, at [19], that the applicant was assaulted around 22 August 2008. However, the IAA considered that this was an “unfortunate accident”.

e.    The applicant further claimed that he was assaulted and questioned by members of the Special Task Force (STF), in 2009, when he was returning his auto rickshaw.

i.    At [20], the IAA accepted this claim however it considered that this was an ‘isolated incident’.

f.    Having accepted all of the claims above, the IAA erred in viewing them in isolation when considering the real chance the applicant faced in suffering serious harm.

g.    Rather, the IAA should have considered the claims cumulatively to highlight that serious harm suffered in the past was significant enough to warrant a risk that harm may be suffered in the future if he is to return to Sri Lanka.

Consideration

21    The question in the appeal is whether, on a fair reading, the Authority properly considered the appellant’s complementary protection claim under s 36(2)(aa). That is, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being returned to Sri Lanka there is a real risk that he will suffer “significant harm” as defined in s 36(2A) . The notice of appeal refers to “serious” rather than “significant” harm and I will treat that as a typographical error.

22    The central issue raised by the appeal is whether the Authority fell into jurisdictional error by viewing each of the appellant’s claims in isolation rather than considering them cumulatively when reaching its conclusion that the appellant did not face a real chance of significant harm. The further particulars the appellant advances relate to specific paragraphs of the Authority’s reasons and draw to the Court’s attention the Authority’s acceptance that:

(a)    the appellant had been harassed by the police in 1997, but that the incident was isolated;

(b)    the appellant’s brother in law disappeared in 2008, but that there was no evidence to indicate that event would cause the appellant serious harm;

(c)    the appellant participated in several protests by auto rickshaw drivers and was stopped and questioned by the CID in relation to having LTTE connections;

(d)    the appellant was assaulted in 2008, but this was an unfortunate accident; and

(e)    the appellant was assaulted and questioned by members of the Special Task Force in 2009, but this was an isolated incident more than a decade after 1997 incident and not linked to it.

The appeal alleges that having accepted those claims the Authority erred in viewing them in isolation when considering whether the appellant faced a real chance of suffering significant harm. It alleges that the harm the appellant suffered in the past was significant enough to warrant an inference that there is a real chance that he may suffer harm in the future if he is returned to Sri Lanka.

23    The appellant contends that paragraph 43 of the Authority’s decision (set out above at [14]) does not constitute a cumulative assessment of the appellant’s claims to complementary protection. He argues that paragraph 43 does not expressly state that the Authority assessed the claims cumulatively, and the use of a comma between each claim and the disjunctive “or” shows that it assessed the claims singularly rather than cumulatively. He submits that on a fair reading of paragraph 43 it was not open to the primary judge to conclude that the Authority assessed the claims cumulatively.

24    The appellant also contends, having regard to the primary judgment at [31], that the Minister impliedly accepted in the hearing below that the Authority failed to assess the appellant’s complementary protection claims cumulatively. He submits that in reliance on the decision in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 (DDK16) the Minister instead argued that there was no obligation on the Authority to make a cumulative assessment.

25    I do not accept the appellant’s contentions.

26    I commence by noting that the primary judge said (at [29]) that the appellant’s solicitor accepted that the Authority referred to considering the appellant’s claims cumulatively by referring back to its consideration of his evidence in relation to his s 36(2)(a) claim. His Honour said that, rather than arguing that the Authority’s assessment was not cumulative, the appellant contended that the Authority’s cumulative assessment only dealt with those of the appellant’s claims listed in paragraph 43 of the decision and not all of them.

27    Parties to an appeal are ordinarily bound by the way the case was put below, but the Court has discretion to permit new grounds to be raised on appeal where it is expedient and in the interests of justice to do so: Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497; Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7; (2015) 227 FCR 95 at [161]-[162]. In the circumstances of the present case it is appropriate to grant leave to the appellant to advance the appeal on the basis set out in his written submissions. Among other things, although his argument was narrowed during the hearing before the Federal Circuit Court it was initially advanced in these terms, was maintained in the written submissions filed in the appeal, and the Minister makes no objection to the appeal being decided on the basis of the broader ground set out in the appellant’s written submissions.

28    In my view there is little merit in the appeal.

29    First, the conclusion as to the appellant’s complementary protection claim set out in paragraph 43 refers back to the Authority’s consideration of the appellant’s claim under the refugee criterion. On a fair reading this paragraph states that having found there was no real chance of the appellant facing “serious harm” on the basis of the various matters upon which he relied in relation to that claim, the Authority was not satisfied that the appellant faced a real risk of “significant harm” as required by ss 36(2)(aa) and (2A) and his complementary protection claim also failed.

30    In setting out its view in relation to the appellant’s refugee claim, the Authority said at paragraph 37 (set out at [15] above) that it considered the appellant’s evidence “in totality” and that it was not satisfied that the appellant has a real chance of being seriously harmed “as a returnee (voluntary or otherwise), former asylum seeker, a person returning on a temporary travel document or for any of the reasons claimed” (emphasis added). The Authority’s reasons for rejecting the appellant’s claims based on the refugee criterion apply to its rejection of his claims based on the complementary protection criterion.

31    While the Authority did not expressly state that the assessment at paragraph 43 was cumulative and it used the disjunctive “or”, on a fair reading of that paragraph in light of the entirety of the reasons, the assessment was cumulative. Paragraph 43 picked up the Authority’s individual and cumulative rejection of the claims the appellant advanced under the refugee criterion. It is open to a decision-maker to rely on anterior factual findings in relation to an assessment under the refugee criterion in its consideration of the complementary protection criterion: see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]; SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32]. The rejection of the appellant’s complementary protection claims was open to the Authority on the material before it.

32    It would have been preferable for the Authority to use clearer language, but it was not necessary for the Authority to restate the same matters in relation to the complementary protection claim as it had already said in relation to the claim under the refugee criterion. On a fair reading the meaning of the decision is plain. As the Full Court said in in DDK16 at [37]:

…in circumstances where there was, as the primary judge put it, “no doubt” that the IAA had demonstrated “active intellectual engagement with those issues” concerning the refugee claim ([103]), the submission that it was a jurisdictional error not again to rehearse the same treatment of those issues under the rubric of the complementary protection claim need only to be stated to [be] rejected. Both claims involve the considered and detailed assessment of risks and it was entirely appropriate for the IAA to reason and conclude as it did, by relying on the reasons that it had already stated.

33    Second, the appellant’s contention that the Minister conceded, in the hearing below, that the Authority failed to assess his claims in relation to the complementary protection criterion cumulatively is misconceived. I accept that the Minister contended below that there was generally no obligation to deal with those claims cumulatively if they were already rejected under the refugee criterion, but the Minister did not accept that the Authority failed to consider the claims cumulatively.

34    I have made orders to dismiss the appeal and for the appellant to pay the first respondent’s costs of the appeal.

Associate:

Dated:    29 May 2018