FEDERAL COURT OF AUSTRALIA

AUV15 v Minister for Immigration and Border Protection [2018] FCA 812

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed or agreed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (the Federal Circuit Court) dismissing the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, which was then the Refugee Review Tribunal (the Tribunal). The Tribunal found that the appellant was not a person in respect of whom Australia owed protection obligations under either s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act), and did not meet the criteria for the grant of a protection visa under that Act. On appeal, the Federal Circuit Court held that the Tribunal had not fallen into jurisdictional error and dismissed the appellant’s application for judicial review.

2    The appellant, who is a citizen of Sri Lanka, relies on two grounds of appeal in support of his contention that Federal Circuit Court erred by failing to find that the Tribunal fell into jurisdictional error.

3    The first ground of appeal is that the Federal Circuit Court made an appellable error in failing to find that the Tribunal did not consider a submission, squarely raised with it and which it was, therefore, obliged to consider. That submission was that, if the appellant were forced to return to live in Sri Lanka, there was a real chance that he would suffer persecution or a real risk that he would suffer significant harm because he was opposed, or would be perceived to be opposed, to a pro-government paramilitary group called the “Karuna Group”. The Minister submitted that the Tribunal, in fact, expressly dealt with and rejected this submission in its statement of conclusions and that it gave a number of reasons, each of which comprised a rejection of claims made by the appellant, for so concluding.

4    The second ground of appeal relates to country information. The appellant contends that, although the Tribunal adverted to some of the country information before it concerning the situation in Sri Lanka (including advice from the United Nations High Commissioner for Refugees, a report from the Department of Foreign Affairs and Trade and a report from “Freedom from Torture”), it did not consider other “important material”, including material from Human Rights Watch, the International Crisis Group and the United Nations Convention Against Torture.

5    Counsel for the appellant accepted that it is for the Tribunal, not the courts, to determine what evidence the Tribunal is to prefer, and that the Tribunal need not refer to all the country information before it. However, counsel for the appellant further submitted that, in this particular case, the Tribunal ought to have considered certain country information about “a culture of endemic torture” of people held in detention or under police control in Sri Lanka. The first respondent (the Minister) submitted that there was nothing exceptional or particular about this case; that the choice and the assessment of the weight of the country information were matters for the Tribunal, not this court; that the Tribunal was not obliged to comment on every item of country information; and that, in any event, it is apparent from the Tribunal’s reasons that it is to be taken to have rejected the substance of the country information upon which the appellant sought (and now seeks) to rely.

6    For the reasons which are set out below, both grounds of appeal must be rejected. The appeal will accordingly be refused, with costs.

Factual background

7    The appellant was born in Batticaloa, in the east of Sri Lanka, in February 1980. He is citizen of Sri Lanka of Tamil ethnicity and Hindu religion. He applied for a protection visa on 15 November 2012 (the visa).

8    A delegate of the Minister refused to grant the visa on 14 August 2013. The Tribunal affirmed the decision on 30 April 2015.

9    The appellant claimed to fear harm in Sri Lanka due to (1) a perceived opposition to the Karuna Group; (2) his Tamil ethnicity and Hindu religion; (3) his status as a failed Tamil asylum seeker because he would be imputed to be a supporter of the Liberation Tigers of Tamil Eelam (LTTE); and (4) his status as a person who departed Sri Lanka illegally.

10    The claim to fear harm arose from an incident that occurred in March 2007 in Sri Lanka, when the appellant saw his brother shot dead by members of the Karuna Group, one member of which the appellant was able to identify. As a result, the appellant claimed that threats to kill him were made; that his wife had received threats; and that he went into hiding from 2007 until 2012, when he left Sri Lanka. The appellant arrived in Australia as an “irregular maritime arrival” in August 2012.

The Tribunal’s findings and reasons

11    The Tribunal accepted that the appellant had witnessed the shooting of his brother in 2007, but did not accept that he was being sought as a consequence by members of the Karuna Group; or that he went into hiding; or that threats were made. It did not accept that he was now, or was at any time, at risk of being killed by members of the Karuna Group.

12    The Tribunal did not accept that the appellant was at risk due to his ethnicity or religion or for imputed connections with the LTTE, nor as a returned asylum seeker who had departed illegally.

13    The Tribunal concluded that the appellant was not a person to whom Australia owed protection obligations.

14    The appellant claimed that the perceived opposition on which he relied arose out of his personal problem with a person whom he named, to whom I shall refer as “Mr E.” The appellant claimed that he witnessed his brother being shot in 2007, that he saw four members of the Karuna Group then run into a nearby army camp and that they were now looking for him. One of those persons was Mr E. In its reasons, the Tribunal:

(1)    accepted that the appellant’s brother may have been shot by members of the Karuna Group in 2007, and that the appellant may have been a witness to the shooting [26];

(2)    accepted that the appellant could have known that one of the people involved was called Mr E [27];

(3)    did not accept that, after the shooting, a member of the Karuna Group threatened to kill the appellant at the hospital if he told anyone he had witnessed the shooting [28];

(4)    did not accept that members of the Karuna Group visited the appellant’s wife or father or warned them or had asked for the appellant [29];

(5)    did not accept that the police would have investigated the shooting even if the appellant had identified one of the shooters, and did not accept that Mr E or members of the Karuna Group would have been concerned about the possibility of prosecution for shooting the applicant's brother [30];

(6)    found that if members of the Karuna Group had any concerns about the appellant they would have killed him at the time [30];

(7)    did not accept that Mr E or the Karuna Group looked for the appellant after his brother was shot or that they had an interest in the appellant or that the appellant was in hiding from 2007 until left Sri Lanka in 2012 [31];

(8)    did not accept that members of the Karuna Group sought to abduct the applicant in March 2012, five years after shooting his brother in order to prevent him from disclosing their identity [33];

(9)    found that the applicant has never named any persons involved and there is no reason why they would be concerned he would name them in 2012 when he had not named them in the preceding 5 years [33];

(10)    did not accept that men in military uniforms visited the applicant's wife looking for the applicant [34];

(11)    did not accept that the Karuna Group was searching for the applicant or threatened the applicant’s wife [36]; and

(12)    did not accept that Mr E held (or holds) a position within government or as an advisor to the former president [37].

15    The Tribunal concluded at [38] that, for those reasons, it did not accept that: (1) members of the Karuna Group threatened the applicant or, 5 years later, were looking for him in 2012 to kill him because he witnessed the shooting of his brother; (2) members of the Karuna Group or other people in military uniforms visited the applicant’s wife and assaulted her in 2012 because they were looking for the applicant to kill him; or (3) members of the Karuna Group are looking for the applicant or wish to harm him to prevent him from identifying who shot his brother in 2007.

16    Relevantly, the Tribunal further concluded at [79]:

Having regard to all the circumstances and findings above, the Tribunal finds that the [appellant] does not face a real chance of serious harm in Sri Lanka because of an actual or imputed political opinion of opposition to the Karuna Group, actual or imputed association with the LTTE, as a Tamil or as a Hindu, as a returnee, a failed asylum seeker or a person who departed Sri Lanka illegally. The Tribunal finds that the [appellant] does not face a real chance of persecution now or in the reasonably foreseeable future in Sri Lanka because of an actual or imputed political opinion, his race, his religion or as a member of a particular social group of returnees or failed asylum seekers or persons who left Sri Lanka illegally, separately or cumulatively. The [T]ribunal finds the applicant’s fear is not well founded.

17    On the question of country information, the Tribunal reasoned as follows, under the heading “Treatment of returnees/failed asylum seekers”:

[53] The [appellant] claims he will be detained and tortured at the airport because he is Tamil and lived in an LTTE controlled area. He also claims that [Mr E] has links with the CID and will know he has returned.

[54] DFAT has provided the following advice on the entry and exit procedures for returnees to Sri Lanka (discussed with the [appellant]):

5.24 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically take several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport…

5.25 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.

…

[55] DFAT advised in 2012 that:

R2. [The Australian Department of Immigration and Citizenship] has not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to [The Australian Department of Immigration and Citizenship] of mistreatment at the airport or on return to their places of residence. [The Australian Department of Immigration and Citizenship] has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.

We have spoken to NGOs involved in facilitating the involuntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or received any allegations of mistreatment from any of the 10 meals Sri Lankans they have facilitated.

We contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report “Sri Lankan Tamils tortured on return from the UK”. The Migration Directorate from the Foreign and Commonwealth Office (F CEO) in London responded:

“We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture”.

“On 16 August FCO and UKBA met with Human Rights Watch and Freedom from Torture to discuss their allegations. UK BA have written to them since and received no response” and are due to meet freedom from torture again in November.

….

[56] While there are reports claiming that Tamil returnees have been harmed on return to Sri Lanka [citing Freedom from Torture, Sri Lankan Tamils tortured on return from the UK, 13 September 2012 … ], other sources contest these claims. In 2012, the UK Home Office noted that the allegations that Tamil returnees have been harmed on return to Sri Lanka lack substance and detail and that:

The principal focus of the authorities continues to be, not the Tamils from the north (or east) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms.

[57] In its most recent country report, DFAT advised that it is aware of a small number of allegations of torture or mistreatment by returnees and that verifying these allegations is difficult because they have been made anonymously and to third parties. DFAT has also noted that there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of mistreatment and “assesses the risk of torture or mistreatment for the great majority of returnees [as] low, including those suspected of offences under the Immigrants and Emigrants Act” [citing DFAT, 2015, DFAT Country Report Sri Lanka, 16 February].

[58] In view of all the country information above, the Tribunal does not accept that the applicant will be detained or tortured on return to Sri Lanka because he is Tamil or because he lived in an LTTE controlled area. For the reasons set out above, the Tribunal is satisfied that the applicant will not be imputed with an LTTE association and places weight on the DFAT advice that there have been no reports of mistreatment of returnees from Australia…

The Federal Circuit Court

18    A number of different grounds were relied upon before the Federal Circuit Court judge. Only two of them are now pursued. See AUV15 v Minister for Immigration and Border Protection [2017] FCCA 1951 at [55]–[57] (ground 1) and [64]-[77] (ground 2).

Consideration

Ground 1

19    Counsel for the appellant submitted that the Tribunal fell into jurisdictional error because, having found that the appellant’s brother may have been killed by a member of the Karuna Group, it did not consider the submission put on behalf of the appellant that he may have a real chance of persecution or a real risk of significant harm in the reasonably foreseeable future as a person opposed, or perceived as opposed, to the Karuna Group.

20    The appellant submitted that “[t]his was a necessary question raised by the Tribunal's acceptance that the appellant was a witness of his brother’s murder by members of the Karuna Group … the submission that he had a profile of opposition to the Karuna Group … and the Tribunal’s acknowledgement of close links between the Karuna Group and the Sri Lankan Army, an organ of the Sri Lankan government … ”.

21    The appellant submitted that the primary judge erred in rejecting that ground (ground 1 here) “because, although the Tribunal dealt with the question whether the appellant was sought by the Karuna Group as a witness to their murder of his brother, this was a distinct and narrower issue than the question whether the appellant may be at risk as a person perceived as opposed to the Karuna Group”.

22    In my view, ground 1 must fail. First, the Tribunal did consider whether the appellant may have a real chance of persecution or a real risk of significant harm in the reasonably foreseeable future as a person opposed, or perceived as opposed, to the Karuna Group. It expressly found at [79] of its reasons that “[h]aving regard to all the circumstances and findings above, the Tribunal finds that the [appellant] does not face a real chance of serious harm in Sri Lanka because of an actual or imputed political opinion of opposition to the Karuna Group.” Counsel for the appellant submitted that that conclusion was a hollow one, unsupported by reasons. I do not accept that submission. It is plain from the litany of claims made by the appellant that the Tribunal rejected (summarised at [14] of these reasons) that, as counsel for the Minister put it, “the whole basis upon which the appellant claims that there is going to be some perception of opposition to the Karuna Group involving this shooting has been rejected by the Tribunal on a fair reading of its reasons.”

Ground 2

23    In relation to ground 2, the appellant submitted that, in assessing whether the appellant might relevantly suffer persecution or significant harm were he to return to Sri Lanka, “the Tribunal failed to consider substantial and important information before it from diverse sources relating to: torture and ill treatment; harm suffered by persons during interrogation; arbitrary detention; torture at every police station; bad prison conditions in conjunction with the torture of persons in detention; and differential aiming of harm at Tamils”.

24    The country information said to be ignored included reports from Human Rights Watch, the International Crisis Group and the United Nations Convention Against Torture.

25    The appellant submitted that “[t]he Tribunal failed to have regard to [those] sources of information … which it was bound by the Act to consider in conducting the review of the matter before it.” It was submitted that “[t]his obligation flows primarily from the obligation of the Tribunal to review the matter before it pursuant to s 414 of the Act” and “is illustrated by the various sections of the Act which refer to the Tribunal getting or dealing with information” (citing ss 414, 415, 420, 424, 424A, 424AA, 425, 426, and 430 of the Migration Act 1958 (Cth)).

26    It was further submitted that “in the present case the Tribunal’s own reasons for rejecting a risk of serious harm to the applicant while in prison for a short time indicate, by referring to some reports but omitting reference to other important reports, that it did not consider the whole body of the material put before it relating to abuses of human rights”.

27    Notwithstanding those submissions, counsel for the appellant did not seek to cavil with any of the legal propositions upon which the Minister relied in this regard, including the following:

(1)    As a general proposition, a tribunal does not fall into error when it makes a choice between competing information. The choice of, and weight to be given to, such information is a matter for the tribunal: Aporo v Minister for Immigration & Citizenship (2009) 113 ALD 46; [2009] FCAFC 123 at [45]; VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [63] (per Lander J); MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [19].

(2)    In order to complete its jurisdictional task, a Tribunal is not required expressly to record and comment upon each particular piece of information or material before it, and is “not obliged to set out every detail of the reasoning process which [it] eventually employed for the [applicant’s] consideration”: Re Ruddock and Anor; Ex parte S154/2002 (2003) 201 ALR 437; [2003] HCA 60 (per Gummow and Heydon JJ at [54]).

(3)    A failure to have regard to relevant material which is so fundamental that it goes to jurisdiction may in some circumstances constitute jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]; WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319.

(4)    The question of the accuracy of the country information is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of country information, it would be engaging in merits review. The Court does not have power to do that: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].

(5)    Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal: NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048 (McKerracher J) (at [31]-[32]);

(6)    The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]); MZYJJ v Minster for Immigration and Citizenship [2011] FCA 957 (Tracey J) at [22].

28    In my view, it is clear from the passages of the reasons of the Tribunal (quoted above at [17]), contrary to the submission made on behalf of the appellant, that the Tribunal did take into account information from the groups that the appellant says it ignored. The Tribunal, for example, said that “claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors”; “FCO and UKBA met with Human Rights Watch and Freedom from Torture to discuss their allegations. UK BA have written to them since and received no response”; and “[w]hile there are reports claiming that Tamil returnees have been harmed on return to Sri Lanka (see Freedom from Torture, Sri Lankan Tamils tortured on return from the UK, 13 September 2012…), other sources contest these claims”. In concluding that “[i]n view of all the country information above, the Tribunal does not accept that the applicant will be detained or tortured on return to Sri Lanka because he is Tamil or because he lived in an LTTE controlled area,” it is clear that the Tribunal considered (and did not accept) much of the information which the appellant submits it ignored. Further, to the extent that it did not expressly refer to and consider the information relied on by the appellant, it was under no obligation to do so, for the reasons or principle set out at [27] above.

29    Ground 2 must, therefore, also fail.

30    I will accordingly order that the appeal be dismissed, with costs to be assessed or as agreed.

Associate:

Dated:    1 June 2018