FEDERAL COURT OF AUSTRALIA

AHQ16 v Minister for Immigration and Border Protection [2018] FCA 1128

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, identified by the pseudonym AHQ16, is a citizen of Sri Lanka. He illegally left Sri Lanka by boat in April 2012 and arrived in Australia some two weeks later as an irregular maritime arrival.

2    In August 2012 he applied for a Protection (Class XA) visa, but that application was rejected by a delegate of the Minister for Immigration and Citizenship in October 2012. An application for review of the delegate’s decision was then lodged with the Refugee Review Tribunal in November 2012. In May 2013, the Tribunal affirmed the delegate’s decision. An application for review of the Tribunal’s decision was dismissed by the Federal Circuit Court in June 2014 (SZSZP v Minister for Immigration and Border Protection [2014] FCCA 1140) but that Court’s decision was set aside by a decision of this Court in February 2015: SZSZP v Minister for Immigration and Border Protection [2015] FCA 110. The matter was remitted to the Tribunal.

3    In January 2016 the decision not to grant the Appellant a Protection visa was again affirmed by what was by then the Administrative Appeals Tribunal. A further application for review of the Tribunal’s decision to the Federal Circuit Court resulted in that Court in September 2017 dismissing the application: AHQ16 v Minister for Immigration and Border Protection [2017] FCCA 2291. In November 2017, the Appellant again filed a Notice of Appeal in this Court.

4    The Notice of Appeal sets forth four Grounds of Appeal, which claim that the Tribunal committed jurisdictional error:

    by applying the “wrong test” and/or by failing “to address an integer/claim regarding the detention claim upon return to Sri Lanka”;

    by failing “to take into account that the applicant’s detention in poor prison conditions … would constitute persecution”;

    by failing “to deal with accepted facts and whether these enhanced the risk to the applicant”; and

    in finding “that by virtue of the applicant’s previous departure the applicant would not be of interest to the wide range of authorities and paramilitaries who would harm the applicant”. That “finding”, it is said, was “irrational and/or illogical”.

In each case, the Notice of Appeal further contends that the primary Judge erred in not discerning jurisdictional error on the part of the Tribunal.

5    The Appellant appeared before this Court unrepresented but with the assistance of an interpreter; the First Respondent, being the Minister for Immigration and Border Protection, was represented by Counsel.

6    It is concluded that the appeal should be dismissed with costs.

Failing to consider an integer/claim

7    The first Ground of Appeal is in substantially similar terms to the first Ground of Application as advanced before the Federal Circuit Court to the extent that it claims that the Tribunal “applied the wrong test” and/or that there was a failure to consider an “integer/claim”.

8    Before the Federal Circuit Court, this Ground was abandoned given the decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, (2017) 347 ALR 405 (“SZTAL”).

9    The Ground, having been previously abandoned, should not be permitted to be resurrected on appeal.

Poor prison conditions as persecution?

10    The second Ground of Appeal is in substantially similar terms to the second Ground of Application as advanced before the Federal Circuit Court.

11    Before the Federal Circuit Court, this Ground was also abandoned given the decision in SZTAL [2017] HCA 34, (2017) 347 ALR 405.

12    Again, the Ground having been abandoned before the Federal Circuit Court cannot now be resurrected on appeal.

A failure to deal with accepted facts

13    The third Ground of Appeal is in substantially similar terms to the third Ground of Application as advanced before the Federal Circuit Court.

14    When the case was before that Court, the comparable Ground as expressed in the Application was that the Tribunal had failed to “deal with accepted facts” and identified those facts as being the acceptance on the part of the Tribunal that:

    the applicant’s uncle (who was a member of the LTTE) was killed in 2006;

    the Applicant was “missing”; and

    the Applicant was “subject to round up”.

The Ground as expressed before the Federal Circuit Court went on to allege that the Tribunal “failed to deal with the cumulative effects of these” and “committed jurisdictional error”.

15    If any question of whether this Ground was reformulated before the Federal Circuit Court is presently left to one side, the Ground as originally expressed – and as it was expressed before this Court – is without substance. Although there may be some uncertainty as to what was meant to be conveyed by an allegation that the Tribunal failed to “deal with” accepted facts, it was presumably meant to convey an argument that the Tribunal had failed to give “proper, genuine and realistic” consideration to each of the “accepted facts”: cf. Khan v Minister for Immigration and Ethnic Affairs (unreported, FCA, Gummow J, 11 December 1987). See also Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], (2003) 74 ALD 124 at 130 per Wilcox J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [212], (2005) 147 FCR 51 at 92 to 93 per Madgwick J (Conti J agreeing).

16    A review of the Tribunal’s reasons, however, discloses proper consideration being given to each of the “accepted facts” relied upon by the Appellant. Those reasons thus state in part as follows:

44.    The Tribunal does not accept the letters claims that the applicant’s family have strongly supported the demands for political autonomy of the Tamil speaking people in the North and Eastern region of Sri Lanka or that they have come under the surveillance of the Sri Lankan security forces. While the Tribunal accepts the applicant’s oral evidence that he was involved in protests and rallies about the death of students in 2005, and that the applicant was caught up in a round up in 2007, and that his cousin was taken by CID in a van in 2008 and has not been seen since, the Tribunal does not accept the applicant was actively involved in all the political and human rights activities of the Tamil people and was looked upon by the Sri Lankan security forces as a Tamil political activist. While the Tribunal accepts the applicant’s oral evidence that his uncle was involved in the LTTE and died in 2006, the Tribunal does not accept any other relatives were involved with the LTTE, or that the security forces became aware of this which made the applicant’s position even more vulnerable. …

48.    While the Tribunal accepts the county information indicates that some white van abductions continue to occur in Sri Lanka, the Tribunal does not accept white van abductions or round ups increased in frequency in the applicant’s area, or that 12 or 23 people were abducted, prior to him leaving Sri Lanka in April 2012. As noted above the Tribunal accepts the applicant’s uncle was killed in 2006 and that the applicant was caught up in a round up in 2007, and that his cousin was abducted in 2008. The Tribunal also notes those incidents occurred during the civil war in Sri Lanka and that the security situation has changed dramatically since the end of the war in 2009. On the evidence before it the Tribunal finds the applicant continued to live and work in Trincomalee after the end of the war in 2009 and until he left Sri Lanka in 2012, and that he and his family members did not experience any serious harm and were not the subject of any round ups or white van abductions over that period of time. On the evidence before it the Tribunal is not satisfied there is a real chance the applicant will be abducted or caught in a round up and harmed if he returned to Sri Lanka, now or in the reasonably foreseeable future.

There is no reason to question that such consideration as was given to these claims was anything other than “proper, genuine and realistic” consideration. Each of the claims was addressed by reference to the evidence and other materials available to the Tribunal and a finding made.

17    But this Ground as initially formulated in the Application as filed in the Federal Circuit Court seems to have been reformulated when the case proceeded to hearing. As reformulated the argument became an argument that the Tribunal:

    “erred in the assessment of the number of abductions that may have occurred” and failed to engage “with the assessment of the risk” said to arise by reason of the abductions and “round-ups”; and

    manifested a “degree of confusion” about the now-Appellant’s credibility.

Even as reformulated, however, the Ground remains without substance. More importantly, no appellable error is discernible in the reasons given by the primary Judge for rejecting the reformulated argument.

18    However the argument was presented, it was rightly rejected by the Federal Circuit Court.

19    As reformulated before the Federal Circuit Court, the argument focussed (at least in part) upon the manner in which the Tribunal assessed the degree of risk faced by the Appellant by reference to what were referred to as “white van abductions”. That issue was addressed in part by the Tribunal at para [48] of its reasons for decision. The Tribunal also gave the issue greater attention elsewhere in its reasons and did so in the context of making an assessment of the credibility of the now-Appellant.

20    The Tribunal thus reached the following conclusion:

33.    Given the confusion in the applicant’s evidence and the lack of any country information to support the claims that such a large number of Tamils were abducted at this time, the Tribunal is not satisfied the applicant has told the truth about the round ups and white van abductions in his area in 2012 or about his reasons for leaving Sri Lanka.

Part of the lack of satisfaction on the part of the Tribunal as to the now-Appellant’s evidence arose by reason of an inconsistency between a letter he relied upon and his oral evidence. The letter, being a letter dated 23 August 2015, thus addressed the circumstances of the now-Appellant and continued on to state in part as follows (without alteration):

He was also actively supportive of the political activities of the Tamil people. All these factors, cumulatively resulted in his coming under the strict surveillance of the Srilankan Security Forces. He was once taken into custody, and subjected to severe interrogation, he was released with much difficulty. He there after refrained from being seen publicly. The Security Forces however continued to look for him. If taken into custody he faced the prospect of persecution.

But the Tribunal found that the now-Appellant’s oral evidence departed from this account. The Tribunal thus concluded in part as follows:

36.    The Tribunal also raised its concerns that the letter stated the applicant was actively involved in all the political and human rights activities of the Tamil people and was looked upon by the Sri Lankan security forces as a Tamil political activist. The Tribunal noted that information was very different for the applicant’s oral evidence about the activities he undertook in Sri Lanka. The applicant had told the Tribunal he had helped Mr Sampanthan with small things such as posters and helping making the stage during a provincial election in around 2009 or 2010. When questioned if anyone in his family had been involved with the LTTE the applicant had told the Tribunal his uncle was involved and joined the Movement when the applicant was very young. He told the Tribunal his uncle died before the applicant went to India in 2006. The applicant told the Tribunal no one else in his family was involved. On further questioning the applicant had told the Tribunal that he was not directly involved with the LTTE but he had participated in rallies after some students were shot and the Rising Tamil events in around 2005. On questioning the applicant told the Tribunal he was never taken into custody or questioned about his involvement or links to the LTTE.

The Tribunal thereafter went on to address other claims made by the now-Appellant as follows:

41.    The Tribunal also noted the letter states the applicant was supportive of the political activities of the Tamil people and all these factors cumulatively resulted in the applicant coming under strict surveillance of the Sri Lankan security forces. The Tribunal raised its concerns that this information was very different to the applicant’s oral evidence, and that the applicant had not mentioned being under strict surveillance of the security forces. In response the applicant told the Tribunal he had told the Tribunal what had happened to him. …

42.    During the hearing the applicant had told the Tribunal that he has never been taken into custody or questioned about his involvement or links to the LTTE. The Tribunal raised its concerns that the letter from Mr Sampanthan states the applicant was once taken into custody, and subjected to severe interrogation. In response the applicant told the Tribunal that may be a reference to the round up in 2007. The Tribunal noted the letter goes on to say that, there after the applicant refrained from being seen publicly. The Tribunal noted the applicant had told the Tribunal he was working in the petrol station and his father’s shop after 2007 and had travelled in and out of Sri Lanka a number of times. In response the applicant confirmed he was working in 2008.

43.    Given the concerns noted above about the difference between the applicant’s oral evidence and the contents of Mr Sampanthan’s letter, the Tribunal is not satisfied the contents of the letter are true or reliable.

The Tribunal concluded as follows (without alteration):

47.    On the evidence before it the Tribunal does not accept there is a real chance the applicant will suffer serious harm or harm of any kind from the Sri Lankan government or security forces or the STF or the CID or the Sri Lankan Army or Navy or the EPDP or the Karuna Group due to suspicions he has links with the LTTE (which the Tribunal does not accept he is suspected of), if he returned to Sri Lanka, now or in the reasonably foreseeable future.

There is no reason to question that these findings made by the Tribunal were findings available to it to make.

21    The conclusion of the primary Judge was that the now-Appellant had “not been able to demonstrate … how the Tribunal erred in assessing the number of abductions that occurred or otherwise failed to engage in an assessment of risk”: [2017] FCCA 2291 at [20]. No appellable error is discernible in that conclusion of the primary Judge.

22    Nor is appellable error discernible in the rejection by the primary Judge of the latter limb to the reformulated argument, namely the argument as to inconsistency in the Tribunal’s credibility findings. There simply was no inconsistency and certainly no “confusion”. The findings of the Tribunal as to the now-Appellant’s credibility, it may be noted, were also findings open to it given (by way of example):

    the differences between the now-Appellant’s oral evidence and the documentary evidence relied on (e.g., at paras [29], [36], [41] and [43] of the Tribunal’s reasons); and

    the “confusion” in his evidence (e.g., at para [33] of the Tribunal’s reasons).

23    The third Ground of Appeal is thus rejected.

Previous departure

24    The final Ground of Appeal is troublesome.

25    In the Application as first filed in the Federal Circuit Court, the comparable Ground was expressed as follows:

The Tribunal committed jurisdictional error when it found that by virtue of the Applicant’s previous departure the Applicant would not be of interest to the wide range of authorities and paramilitaries who would harm the Applicant. The finding is irrational and / or illogical.

26    But this Ground of Application was not pressed before the Federal Circuit Court “in current form”: [2017] FCCA 2291 at [22]. The Ground was there revised into a challenge “to the Tribunal’s treatment of the applicant’s claim regarding white van abductions and round-ups”. As reformulated, the argument became one as to a denial of procedural fairness.

27    Any reliance upon an argument that a finding was “irrational and / or illogical”, it would appear, was abandoned before the Federal Circuit Court. And before that Court the now-Appellant was represented by Counsel. Having then abandoned the argument as originally expressed, and without explanation as to why the abandoned argument is now sought to be revived on appeal, it is considered that the issue on appeal should be confined to the argument as it was previously advanced and resolved: cf. SZNJE v Minister for Immigration and Border Protection [2016] FCA 803 at [24], (2016) 69 AAR 563 at 569.

28    The primary Judge rejected the argument. That Judge pointed out that the now-Appellant had been put on notice that his claims were in issue and was given an opportunity to address the concerns of the Tribunal, including its concerns as to inconsistencies in his evidence.

29    No appellable error is discernible in the reasons of the primary Judge.

30    The final Ground of Appeal is also rejected.

CONCLUSIONS

31    Each of the Grounds of Appeal has been rejected.

32    The appeal should be dismissed.

33    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    1 August 2018