FEDERAL COURT OF AUSTRALIA

AXM16 v Minister for Immigration and Border Protection [2018] FCA 926

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

INTRODUCTION

1    The appellant is a Tamil man from Sri Lanka who arrived in Australia in June 2012. He applied for a Protection visa on 6 November 2012. This was refused by a delegate of the first respondent (the “Minister”) on 4 July 2013. This decision was then reviewed by the second respondent, the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal affirmed the Minister’s decision on 24 March 2016. The appellant sought judicial review of that decision in the Federal Circuit Court of Australia (the “FCC”). That application was dismissed on 5 December 2017. The appellant appeals that decision to this Court.

BACKGROUND

2    The appellant’s claims were succinctly summarised by the primary judge in the following terms (at [3]-[5]), which I respectfully adopt:

[The applicant] claimed to fear harm upon return to Sri Lanka due to his Tamil ethnicity, an actual or imputed anti-government political opinion, and as a member of a particular social group of young Tamil men who have escaped to and claimed asylum in a Western country. He claimed to fear harm in particular from the Criminal Investigation Department (CID) and a paramilitary group (the Pillaiyan group), who harassed and threatened him between 2010 and July 2011. He further claimed that on two occasions in 2006 he was interrogated and videotaped by the authorities.

The applicant’s claims include the following:

a)    in January 2006, the applicant was at a beach party with friends when the Army arrived and surrounded people on the beach. Five teenage school children were shot and killed;

b)    the Army were photographing people in the protests and the funeral after this event. From time to time, the applicant’s village was surrounded and young people were taken for questioning. He was taken two times for this type of questioning over four or five hours. People were beaten if they did not answer correctly;

c)    that incident made the applicant want to leave the country, and in January 2007 the applicant travelled to Singapore to escape Sri Lanka;

d)    on 16 August 2008, the applicant returned to Sri Lanka. He stayed with his aunt in Colombo until January 2009, after which he returned to Batticaloa. He got a job in April 2009 and married in October 2009;

e)    in January 2010, the CID picked him up on the way back home. He was on a motor bike and they were in a four-wheel drive jeep. They asked him questions about himself. There was a Tamil man in the truck who said that they were searching people who had been in rehabilitation. They wanted information about the [Liberation Tigers of Tamil Eelam (the “LTTE”)];

f)    afterwards, a Tamil man called Pulliam, who is a member of the Pillaiyan group, contacted him over the telephone. He threatened the applicant and accused him of being an LTTE supporter. He told the applicant that he would be taken in for questioning. The reason for the harassment was partly because he had spent time out of Sri Lanka and “they” might have thought that he is a wealthy person who could give “them” money;

g)    the applicant had been hassled twice in October 2010 and February 2011. The CID visited his house and threatened his wife, grandmother and sister. The applicant was never at home at those times as he was on “fieldwork” outside Batticaloa. After that a white van was waiting in front of his house on two separate occasions. There was no numberplate on the van. The family decided to close all the doors and stay inside;

h)    on 18 August 2011, the applicant complained to the Human Rights Commission in Batticaloa after a stone was thrown from the white van and broke a window in his house. The complaint to the Human Rights Commission was made after he sent his wife to her mother’s place in Trincomalee because he was worried for them both;

i)    around July 2011, a white van followed the applicant when he was going to work on his motorbike. Once he reached his office and went inside, the white van left. He fears that they might have been seeking an opportunity to abduct him;

j)    after that, the applicant sent his wife and grandmother away. He also left his house and rented it out in November 2011. He went to Kallady, about five kilometres from Batticaloa, and rented a room from people he knew. He did not go to work during this period because he was too afraid to travel there;

k)    the applicant was taken secretly from Batticaloa to Colombo and then Negombo. He then left Sri Lanka; and

l)    when reporting to the Army, the applicant was beaten up and they would still ask about the LTTE weapons.

In summary, the applicant claims to fear harm or persecution from the Sri Lankan authorities if he were to return to Sri Lanka, for the following reasons:

a)    he is of Tamil ethnicity;

b)    his imputed political opinion and involvement with the LTTE; and

c)    he departed Sri Lanka illegally.

(Citations omitted)

PROCEEDING IN THE TRIBUNAL

3    The appellant gave evidence before the Tribunal with the assistance of a registered migration agent and an interpreter on two occasions. First, on 27 November 2014 and again on 3 February 2016, before a differently constituted Tribunal (as the originally constituted Tribunal was unable to complete its review). After the second hearing, the registered migration agent filed written submissions dated 17 February 2016.

4    The Tribunal correctly identified the criteria the appellant needed to satisfy to obtain a Protection visa, being the refugee criteria set out in s 36(2)(a) or alternatively the complementary protection criteria set out in s 36(2)(aa) of the Migration Act 1958 (Cth), and the Tribunal’s construction of that criteria is not in dispute in these proceedings.

5    The Tribunal first made findings with respect to the appellant’s claims concerning the Sri Lanka Army (the “SLA”), the Criminal Investigation Department (the “CID”) and the Pillaiyan group. The Tribunal accepted that the SLA shot teenage school children when the appellant was at a beach party in January 2006 and that the SLA had questioned the appellant on two occasions. However, bearing in mind the country information before it, and noting an absence of any persuasive reason as to why the CID would target the appellant, the Tribunal expressed concerns as to the credibility of the appellant’s version of certain other events. Importantly, the Tribunal did not accept that the CID and Pillaiyan group questioned the appellant about the Liberation Tigers of Tamil Eelam (the “LTTE”). The Tribunal also made the following findings at [46]:

The Tribunal does not accept that he was continuously threatened or that demands were made for him to make payments to the CID and the Pillaiyan group. The Tribunal does not accept that the CID visited his house on two occasions, threatening his wife, his sister and his mother. The Tribunal does not accept that he was monitored, followed or ‘surveilled’. The Tribunal does not accept that stones were thrown at his house or that his property was damaged. The Tribunal does not accept that he had left his house or had lived in hiding or kept a low profile between August 2011 and May 2012. The Tribunal does not accept that he had left his job for the reasons he has provided. The Tribunal does not accept that the SLA, the CID or the Pillaiyan group have any adverse interest in the applicant.

It follows that the Tribunal was not satisfied that the appellant would be imputed to be an LTTE member or supporter, or perceived to hold anti-government views of a nature that would put him at risk of serious harm.

6    The Tribunal accepted that Tamils continue to be subject to a degree of societal discrimination in Sri Lanka but found that there was no government-sanctioned discrimination in the implementation of laws and policies against Tamils. It rejected the appellant’s claim that his Tamil ethnicity was a basis for finding there was a real chance of serious harm to him if he were returned to Sri Lanka.

7    Finally, the Tribunal considered the risk of harm arising from the likely chance of the appellant facing arrest on charges of illegal departure upon his return to Sri Lanka. The Tribunal found that the most likely penalty for leaving Sri Lanka illegally would be a fine and that any possible short-term detention did not amount to significant harm. This basis for the appellant’s claim for protection was, accordingly, rejected.

PROCEEDING IN THE FCC

8    It is unnecessary for me to summarise the judgment below, save with respect to ground three upon which the appellant contended, in substance, to rely upon and which I address below.

THE APPEAL

9    The appellant’s original notice of appeal raised a single ground of review, namely:

The FCC Judge committed jurisdictional error when dismissing proceedings in the FCC.

Before me, the appellant, who was represented by counsel, sought leave to rely upon an amended notice of appeal which raised the following new ground of appeal:

The Primary Judge and the Tribunal failed to consider an integer of the Appellant’s claims leading to a failure to exercise jurisdiction. The Primary Judge failed to exercise jurisdiction by failing to consider whether (i) the Tribunal erred by failing to consider the Appellant’s claim that Pulliam, a member of the Pillaiyan group had accused the Appellant of being an LTTE supporter and threatened that he would be taken in for questioning (the “Pulliam Claim”); (ii) Tribunal failed to consider the Appellant’s claim that he feared “they may have been seeking an opportunity to abduct me” (the “Abduction Claim”); and (ii) there was a real chance that the Appellant would suffer persecution as a result of the Pulliam Claim and Abduction Claim, if he returned to Sri- Lanka.

PARTICULARS

a)    The Appellant claimed that Pulliam “threatened me as being an LTTE supporter and said I would be taken in for questioning.

b)    ……. The Tribunal accepts that if a Tamil falls within the risk profiles referred to earlier, he or she is likely to be more vulnerable to “arbitrary detention, abductions and forced disappearances.

c)    …….including more recent sources such as DFAT, suggest that the principal focus of the authorities has been ‘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 ensuring it was supplied with arms. Similarly, Freedom from Torture reported in 2012 that it was a combination of residence in the UK and an actual or perceived association with the LTTE, which placed individuals at risk of torture and inhumane and degrading treatment. It stated that those at particular risk included Tamils with an actual or perceived association with the LTTE, including those returning from abroad.

d)    A white van followed me on one occasion when I was going to work. This was about July 2011.I was on my motorbike and I reached my office and went inside and the white van left. I fear they may have been seeking an opportunity to abduct me. I drove fast and reached the office.

e)    There is a report dated 26/09/2012 of a 22 year old young man abducted in Batticoloa by persons in a white van with blacked out windows.

(Citations omitted)

I gave the appellant leave to rely on this ground, even though the specific contention concerning the “Abduction Claim” had not been raised in the FCC. In my view, the Minister was not prejudiced by the late raising of this new claim.

THE “PULLIAM CLAIM”

10    The appellant submitted that the threats made to him by the man Pulliam, had not been considered by either the Tribunal or the FCC. It was contended that the Tribunal and the FCC had only taken into account a fear of extortion arising from the conduct of Pulliam, as distinct from a fear arising from being accused of being an LTTE supporter, in assessing whether there was a real chance of persecution (the “Pulliam Claim”).

11    With respect, I disagree. In my view, the Tribunal was aware of the claim made that Pulliam threatened to accuse the appellant of being an LTTE supporter. At [9] of its reasons for decision the Tribunal recorded the following:

In January 2010, the CID picked him up when he was on his way back home. He was on a motor bike and they were in a four wheel drive jeep. They asked him questions about himself. There was a Tamil man in the truck who said they were searching people who had been in rehabilitation. They wanted information about the LTTE. Subsequently, the Tamil man, Pulliam, who is a member of the Pillaiyan group, contacted him by telephone. Pulliam threatened him and accused him of being an LTTE supporter. He told the applicant that he would be taken in for questioning.

12    The Tribunal was also aware of the concern about extortion. At [43] of its reasons for decision, the Tribunal said:

In his oral evidence to the Department and to the Tribunal, he also claimed that he was threatened by Pulliam who asked him for money in exchange for protection. The applicant claimed that he had resolutely refused to give the money demanded.

(My emphasis)

13    As outlined above at [5], the Tribunal ultimately did not accept much of the appellant’s evidence or his claims. The first two sentences of [46] of its reasons are as follows:

For the above reasons, the Tribunal has significant concerns in relation to the credibility of the applicant’s claims. The Tribunal, therefore, does not accept that the applicant was approached and questioned by the CID and Pillaiyan group about the LTTE.

14    As is well-known, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, the Full Court of this Court said:

The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).

That proposition was endorsed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259.

15    Paragraph [46] of the reasons below, sets out a chronological rejection of a series of events said by the appellant to have occurred, and which the Tribunal found had not taken place. In my view the second sentence of [46], supra, is an omnibus rejection of the factual substratum concerning the incident which took place in January 2010 with the CID and with Pulliam. That includes the Pulliam Claim. Counsel for the appellant submitted that the second sentence of [46] did not address the Pulliam Claim but another incident referred to by the Tribunal at [41] as follows:

At the second hearing, when asked why the CID had spent so much time and resources to monitor him over a long period of time, he stated that the CID and paramilitary groups wanted to find youngsters to accuse them of being with LTTE.

16    With respect, again, I disagree. The finding in the second sentence of [46] is not concerned with the finding at [41]. The finding in [46] concerned an event involving both the CID and the Pillaiyan group. The only occasion when that occurred was when Pulliam, who was a member of the Pillaiyan group, made the alleged threats in January 2010. It follows that the reference to that group in the second sentence of [46] must be to the threats made by Pulliam. Applying the principle from Pozzolanic, there was no need for the Tribunal to expressly refer, in that sentence, to Pulliam himself.

17    In the amended application for judicial review in the FCC a similar ground of review had been raised. Ground three was in these terms:

The Tribunal failed to deal with an integer of a claim made out on the facts.

PARTICULARS

a)    The applicant claimed in his statement of claims that a member of the Pillaiyan group whose name is “Pulliam” had “threatened” him “as being an LTTE supporter and said I would be taken for questioning”.

...

(Citations omitted)

In my view, the learned primary judge understood that this claim was possibly distinct from the allegation about extortion. His Honour said at [22] below.

It is clear that the applicant claimed that a particular individual whose name is “Pulliam”, a member of a Tamil paramilitary group, had threatened him “as being an LTTE supporter and said [he] would be taken in for questioning”.

(Citations omitted)

18    The learned primary judge then concluded at [31]:

The Tribunal plainly considered the possible motivations for the alleged extortion attempts; those being the applicant’s Tamil ethnicity and imputed association with the LTTE and a simple financial motive based on the assertion that the applicant was perceived as wealthy. The Tribunal considered the role of “Pulliam” in the extortion attempts. In the end, it did not matter whether Pulliam was making threats in a personal capacity or on behalf of the group he represented. The Tribunal rejected the claim of the extortion demands occurring at all.

19    It is true that the Pulliam threat is described in the paragraph above as being part of an extortion demand. That is because it was unclear whether the LTTE threat and the extortion demand were separate and distinct or whether they were aspects of the same claim, namely, that the appellant’s claim really was that Pulliam had threatened to accuse him of being associated with the LTTE unless he was paid. It seems clear from the last sentence of [31], as set out above, that it did not matter to the primary judge whether there were two claims or merely one. That is because in each case the Tribunal found that they had not occurred.

20    It follows that the “Pulliam Claim” is rejected.

THE “ABDUCTION CLAIM”

21    It was also submitted that the Tribunal had failed to consider the appellant’s claim of fear that he would be abducted if returned to Sri Lanka, and had not considered that fear in determining if there was a real chance that the appellant would suffer persecution (the “Abduction Claim”). This ground of review had not been raised before the learned primary judge.

22    Again, with respect, I disagree. At [12] of the reasons for decision in the Tribunal, it expressly recorded its consideration of the Abduction Claim in these words:

A white van followed him on one occasion when he was going to work. This was in about July 2011. He was on his motorbike and he reached his office and went inside and the white van left. He fears they might have been seeking an opportunity to abduct him.

On the facts, the Tribunal did not accept that this incident ever took place. It found, at [46]:

The Tribunal does not accept that he was monitored, followed or ‘surveilled’.

23    Before me, counsel for the appellant urged that I should not read this sentence as a rejection of the abduction claim, but rather as a reference to other monitoring that had been alleged. The word “abduction” was not used. I respectfully disagree. The appellant only claimed to have been monitored or followed when he was “hassled” twice in 2010; when a white van waited in front of his house twice in 2011; and when the abduction incident occurred in 2011. In my view, the sentence set out above from [46] is, again, an omnibus rejection of all the claims made that the appellant was monitored, followed or “surveilled”. If follows, accordingly, that the appellant did not have a legitimate basis for fearing abduction.

24    Because the evidentiary foundation for the fear of abduction does not exist, this claim cannot found, either alone or with other grounds, the presence of a real chance of persecution. The “Abduction Claim” is also rejected.

DISPOSITION

25    For these reasons the appeal is dismissed with costs as agreed or assessed.

Associate:

Dated:    19 June 2018