FEDERAL COURT OF AUSTRALIA

AIF15 v Minister for Immigration and Border Protection [2018] FCA 1435

Appeal from:

AIF15 v Minister for Immigration and Border Protection [2017] FCCA 3184

File number:

NSD 6 of 2018

Judge:

BANKS-SMITH J

Date of judgment:

19 September 2018

Catchwords:

MIGRATION - appeal from dismissal of judicial review application by Federal Circuit Court of Australia - application to rely on new grounds of appeal - whether Refugee Review Tribunal failed to consider claims - relevance of corroborative evidence - appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 36(2), 424A, 477(1)

Cases cited:

AIF15 v Minister for Immigration and Border Protection [2015] FCCA 1574

Kelly v Australian Postal Corporation [2015] FCA 1064; (2015) 67 ALR 359

Minister for Immigration and Border Protection v MZAIV [2016] FCA 251

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245

SZTMD v Minister for Immigration and Border Protection [2015] FCA 150

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588

Date of hearing:

23 May 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

48

Counsel for the Appellant:

The Appellant appeared in person assisted by an interpreter

Counsel for the First Respondent:

Ms E Cheesman

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 6 of 2018

BETWEEN:

AIF15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

19 September 2018

THE COURT ORDERS THAT:

1.    Leave is refused to raise the grounds of appeal set out in the amended notice of appeal dated 19 May 2018.

2.    Appeal dismissed.

3.    The appellant to pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the former Refugee Review Tribunal (Tribunal) to affirm the Minister's delegate's decision to refuse to grant the appellant a protection visa: AIF15 v Minister for Immigration and Border Protection [2017] FCCA 3184.

Background

2    The appellant is a citizen of Sri Lanka. He arrived in Australia as an irregular maritime arrival.

3    On 14 January 2013 the appellant applied for a protection visa. A delegate of the Minister refused the application on 19 September 2013.

4    On 30 September 2013 the appellant applied to the former Refugee Review Tribunal for review of the delegate's decision. The appellant was represented in the hearing before the Tribunal by a migration agent who also filed detailed written submissions on his behalf. On 9 February 2015 the Tribunal affirmed the delegate's decision.

5    On 26 March 2015, being 10 days after the expiry of the 35 day period provided by s 477(1) of the Migration Act 1958 (Cth) (Act), the appellant applied to the Federal Circuit Court for judicial review of the delegate's decision.

6    On 5 June 2015, the application for an extension of time to seek judicial review was dismissed in an ex tempore judgment: AIF15 v Minister for Immigration and Border Protection [2015] FCCA 1574.

7    The appellant appealed to this Court and by consent, orders were made allowing the appeal and remitting the matter to the Federal Circuit Court (differently constituted).

8    The appellant filed an amended application in the Federal Circuit Court. Taking into account the relatively short original delay, the primary judge granted an extension of time and proceeded to a final hearing.

9    On 20 December 2017, the Federal Circuit Court dismissed the application for judicial review.

10    The appellant now appeals from that decision of the Federal Circuit Court.

The protection claims

11    The appellant claimed to fear harm in Sri Lanka on the basis of his Tamil race, his imputed political opinion as a supporter of Tamil political groups and his status as a failed Tamil asylum seeker. In particular, he claimed that:

(a)    he is from the North of Sri Lanka where Tamils are at risk of persecution and he would not be able to relocate (his submissions refer to his family residing in Thonikal);

(b)    in 1990 his father was killed by Sri Lankan authorities, and the family believe he was killed by the Sri Lankan Army (SLA);

(c)    his mother then took the family to India, returning to Sri Lanka in 1993;

(d)    in 1997 he was under surveillance and at risk of being called on to join the Liberation Tigers of Tamil Eelam (LTTE) so he left for India, returning in 2001;

(e)    while travelling to Colombo in 2005 for a wedding, he and his friends were interrogated and tortured by the SLA;

(a)    in 2006 his cousin disappeared and his body was later found. The appellant says his cousin was killed by the Criminal Investigation Department (CID);

(f)    he was a volunteer for the Tamil National Alliance (TNA) from 2003 to 2011. In 2011 he assisted in the election of Ravi, a local candidate for the Tamil Desiya Congress (TDC) party. The TDC was a political party that assisted the Eelam People's Democratic Party and the Peoples Liberation Organisation of Tamil Eelam. Between 2010 and 2011 he only assisted the TNA candidate;

(g)    in November 2011, while working as a rickshaw driver, he was detained, interrogated and tortured by the SLA.

Tribunal's decision

12    The primary judge summarised the Tribunal's reasons in some detail. Having read the Tribunal's reasons, I consider the primary judge's summary is accurate and the following is largely taken from that summary. The Tribunal accepted that:

(a)    the appellant was from the Northern Province of Sri Lanka, that his father disappeared in about 1990 and that the family had been told that he had been shot by the SLA;

(b)    in about 2005 the appellant and friends had been stopped by police while travelling to Colombo, were beaten and sent to their home area with a warning;

(c)    the appellant's cousin had disappeared in April 2006 and that his body was found several days later. His death certificate referred to homicide. It accepted that the appellant and his family suspected the kidnapping and murder was carried out by the CID, although there was no evidence to that effect. The Tribunal did not accept that the death was necessarily caused by the CID, and observed that it was also possible that any one of a number of other groups may have been responsible or that it may have been randomised violence. The Tribunal accepted the manner of death described by the appellant but found that the cousin's death was caused by a person/persons unknown for reasons unknown;

(d)    from 2003 2011, apart from an incident involving a neighbour's adult son, he was never questioned by the CID or other Sri Lankan authorities and that neither he nor his family suffered harassment, threats or other violence in this period except for the appellant's detention in 2005 and his cousin's death in 2006;

(e)    the appellant had provided support to a named member of the TNA who contested local council elections in 2011 as claimed, and that this support continued until the appellant left Sri Lanka;

(f)    the appellant was detained by the Sri Lankan authorities (most probably the CID) in November 2011 for about an hour and a half. The Tribunal accepted that this incident prompted the appellant to leave Sri Lanka, although it took him some seven months to do so.

13    As noted, the Tribunal accepted the appellant's claims about his father and addressed the death of his cousin. The particular reasons are important for this appeal. After a paragraph in which it indicated that it was making 'the following findings', the Tribunal said (references to the applicant being references to the appellant in this appeal):

26.    The applicant was born on 30 July 1981 in Vavuniya Town, Vavuniya District, in the Northern Province of Sri Lanka. He is one of five brothers and sisters. He was educated until age 16, completing year 10 at secondary school. His father disappeared in about 1990 and is presumed dead. The applicant's family have been told that he had been shot by the SLA.

29.    In April 2006 the applicant's cousin Dharasedaran disappeared, and his body was found several days later. The applicant and his family suspect that the kidnapping and murder was carried out by the CID, although there is no evidence of this. I do not accept that this death was necessarily caused by the CID, although that is a possibility. However, it is also a possibility that any one of a number of paramilitary or other groups may have been responsible. Indeed it could have just been randomised violence. In the circumstances I find that the death was caused by a person or persons unknown for reasons unknown. In summary, while I accept the death took place in the manner graphically described by the applicant during the course of the hearing, I do not find that the death was carried out by the CID.

14    In summary, it can be seen that the Tribunal accepted much of the appellant's evidence. However, as to the event in November 2011, the appellant also claimed in his oral evidence to have been tortured by the CID. The Tribunal did not accept that the appellant was tortured in the manner described in his oral evidence, given the appellant failed to mention any such claim of torture in his earlier written statement that had been prepared at a time when he was represented. The Tribunal did not consider it rational to have refrained from telling his agent such information at a time when the agent would have been drafting a statement designed to most persuasively support his application for protection. The Tribunal did not accept the appellant's explanation that he did not disclose the information because he was afraid his claims against the Sri Lankan authorities would be made known to them.

15    The Tribunal concluded its findings of fact by saying:

36.    In summary therefore I find that the applicant relevantly experienced harm on two occasions: in 2005 (when he was beaten by police when he was travelling to Colombo) and in 2011 (when he was detained by Sri Lankan government authorities, most likely the CID, interrogated but not beaten). I find that his cousin disappeared and was killed in 2006. I find that there was no other harassment, threats or any other acts of violence affecting him or his family from the time he returned from [sic - to] Sri Lanka in 2003 until he left Sri Lanka in July 2012.

16    It then considered protection obligations and the fear of harm under the Refugees Convention for each of the three grounds relied upon by the appellant.

17    As to his Tamil ethnicity, the Tribunal accepted that until the end of the civil war in 2009, the Tamils had suffered disproportionately at the hands of the authorities in the northern and eastern areas, but that since the end of the civil war the risk to Tamils had substantially reduced. The Tribunal had regard to the 2014 Department of Foreign Affairs and Trade (DFAT) Report that reported this improvement. Having regard to the fact that the appellant was last detained by the CID briefly in 2011, and that this was the only occasion on which this occurred (apart from the incident with the police in 2005), the Tribunal was not satisfied that the appellant had a profile which now put him at a real risk of serious harm if he returned to Sri Lanka, and found that its position was supported by country information. It found that he did not have a well-founded fear of persecution by reason of his Tamil ethnicity.

18    As to his support of the TNA and thereby being imputed with support for the LTTE, having regard to country information (including UNHCR Guidelines) the Tribunal had regard to the appellant's particular circumstances, namely that he was not a member of the TNA and had only minor involvement with it. The Tribunal considered the UNHCR Guidelines of 2012 that provide that Tamil ethnicity of itself does not establish a group-based protection mechanism for Tamils and that something more is needed, such as actual or imputed links to the LTTE (this is also noted in the 2014 DFAT Report). The Tribunal also referred to country information relied upon in the United Kingdom to the effect that even if a Tamil has LTTE connections or sympathies, that will not place a Tamil at risk from the Sri Lankan government. Neither report suggests that a Tamil with links to the TNA will be at risk of harm. The Tribunal found that the appellant did not have a well-founded fear of serious harm arising out of his support of the TNA and thereby being imputed with support for the LTTE.

19    As to his status as a failed asylum seeker, having regard to country information, the Tribunal found that any conduct the appellant may experience upon return to Sri Lanka (being questioned at the airport, detained and investigated by Sri Lankan authorities) would be the result of the non-discriminatory enforcement of a law of general application and it was not satisfied that such conduct would amount to systematic and discriminatory conduct.

20    The Tribunal was not satisfied that the appellant had a real chance of serious harm for any of the reasons claimed or arising on the evidence individually or cumulatively. It was not satisfied the appellant was a refugee under s 36(2)(a) of the Act.

21    The Tribunal considered the complementary protection criterion in light of its earlier findings. The Tribunal did not accept that being detained, investigated by the authorities, charged under the Sri Lankan Immigrants and Emigrants Act and fined, constitute significant harm. It considered the most likely result was a fine, based on country information. It noted that the DFAT Report advised that the risk of torture or mistreatment for the great majority of returnees is low, although it may be higher for a returnee suspected of committing serious crimes such as people-smuggling or terrorism offences. There was no suggestion the appellant fell into that category. Accordingly, the Tribunal also found that any harm the appellant may face upon return as a failed asylum seeker would be the result of the non-discriminatory enforcement of a law of general application, and it was not satisfied that there is a real risk he would suffer significant harm for the purposes of s 36(2)(aa) of the Act. Therefore, it was not satisfied that the appellant is owed protection obligations under that provision.

Before the Federal Circuit Court

22    The appellant relied on three grounds of review before the primary judge.

23    By the first ground, he contended that the Tribunal erred in having regard to the fact that the Sri Lankan Immigrants and Emigrants Act was a non-discriminatory law of general application in considering whether he met the complementary protection criterion.

24    The primary judge noted that the Tribunal considered the contention in the context of considering the likely consequences for the appellant if he returned to Sri Lanka. It had already accepted that the appellant would be likely to be questioned and investigated and detained for no more than a few days, and that having regard to country information, all Sri Lankan returnees were treated according to such standard procedures, regardless of ethnicity and religion. The primary judge considered the Tribunal's approach in taking into account such matters was consistent with cases such as SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]-[14] (Rares J) where the Court has considered that whether penalties apply generally to the population is a relevant consideration. The primary judge dismissed ground 1.

25    By the second ground, the appellant contended that the Tribunal had failed to provide an opportunity for a fair hearing. The complaint was based on the fact that the hearing was on 15 December 2014 but the reasons referred in a footnote to a document datedFebruary 2015, and so a document that post-dated the hearing. The appellant said that he had no opportunity to comment on the information.

26    The article in question was a Wikipedia article about the TNA. The primary judge found that the article comprised country information that was not inconsistent with the appellant's own case. There was nothing to indicate the information was adverse to the appellant's case. The article referred to the nature of the TNA, rather than whether people faced harm by association with it. The Tribunal considered the latter issue in its reasons, and that was a matter on which the appellant had made submissions. The article was not central or dispositive of the appellant's claim and in any event it fell within the s 424A(3) exception to the obligations on the Tribunal under s 424A(1) of the Act. The primary judge did not consider there was an evidentiary basis for ground 2 and dismissed it.

27    Ground 3 alleged that the Tribunal failed to comply with Ministerial Direction 56 by failing to take into account the PAM3 protection Visa Complementary Protection Guidelines. The appellant did not point to any aspect of PAM3 that was relevant and should have been taken into account. He ought to have done so: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 at [20] (Perram J). The primary judge considered that in any event it was not established that the Tribunal had failed to take into account any particular aspect of the PAM3 guidelines in a manner constituting jurisdictional error, and that it had engaged with the matters relevant to the appellant's protection claims. Ground 3 was dismissed.

28    The primary judge also engaged with various matters raised by the appellant in oral submissions.

29    The appellant contended that the Tribunal had failed to consider his father's death or claims about his cousin. He said he had provided the Tribunal with a copy of his father's death certificate (and it appears copies of death certificates for his father and cousin were handed up during the hearing before the Tribunal).

30    As to his father's death, the Tribunal noted that the appellant's evidence included his entry interview where he stated (amongst other things) 'In 1990 his father was shot and killed by the army'. It also noted that the appellant's application for a protection visa and attached statement 'recounted the circumstances of his father's disappearance in 1990'. It made the findings referred to in paragraph [13] above.

31    In its summary (see [15] above) the Tribunal did not refer to the father's death, but that summary considered the time period from the appellant's return to Sri Lanka from India in 2003 until he departed for Australia. His father died much earlier, in 1990. The Tribunal had clearly considered and accepted that part of the appellant's claim about his father in the body of its reasons (I note that the words of the Tribunal are consistent with those used in the appellant's own protection visa application statement: 'We were told by a family member from Vavuniya he had had been shot by the army' (Appeal Book p 108)).

32    Having accepted the appellant's claim in that regard, the primary judge did not consider it necessary for the Tribunal to expressly refer to the death certificate (and I note the death certificate provided by the appellant recites that 'Death occurred due to shooting by unknown persons Thonikal').

33    The primary judge also referred to the Tribunal's findings about the appellant's cousin's death and noted it accepted that the death had occurred in a graphic manner as described by the appellant. The appellant claimed the Tribunal failed to take into account a news report about his death. The news report was consistent with the appellant's description of the manner of his cousin's death. The primary judge noted that the Tribunal considered the family's suspicion that the cousin's killing was carried out by the CID (a matter not referred to in the news report). On the materials before it the Tribunal did not necessarily consider it was carried out by the CID but otherwise accepted the appellant's claim. The primary judge considered the finding of the Tribunal was available to it on the evidence. The news article did no more than repeat claims accepted by the Tribunal. In those circumstances the primary judge determined that there was no jurisdictional error revealed in the manner in which the Tribunal considered the appellant's claim about his cousin's death.

Notice of appeal

34    The appellant originally filed a notice of appeal that contained one general ground to the effect that the Federal Circuit Court failed to find that his claims before the Tribunal were not made out. No appellable error was identified and on its face such ground suggested the appellant impermissibly sought to reargue his application before the Tribunal.

35    At the commencement of the hearing the appellant handed up an amended notice of appeal dated 19 May 2018 (it had been served on the Minister's solicitors two days beforehand). Its grounds are somewhat confused and overlapping but allowing for the difficulties inevitably faced by a self-represented appellant who is assisted by an interpreter, it is possible to distil the claims as follows:

(a)    the primary judge erred in failing to find that the Tribunal failed to have regard to information in relation to the death of the appellant's father;

(b)    the primary judge erred in finding that no error was disclosed by the failure of the Tribunal to take into account his father's death certificate;

(c)    the Tribunal failed to take into account evidence that the appellant says he gave to the effect that:

In Sri Lanka during the problem, my mother, 3 sisters and I went to school. During that time, my father's sister went to my home to bring some food for us. My father's sister was in the kitchen for that purpose. My father was sitting in the hallway. The army came to our home and called the people inside to come out. My father was the first person to come out. When my father's sister opened the door and saw the army, my father tried to run but was shot. My father's sister witnessed this incident and went and hid in the kitchen. My father's sister called the neighbours and he was cremated in the back yard of the house. If you don't believe my story you can call the village and they will tell you this story and who killed my father.

(d)    the primary judge failed to find that the Tribunal ignored evidence that he helped or supported the LTTE.

36    During the hearing before me, the appellant also submitted that the Tribunal did not acknowledge and had ignored evidence about his cousin's death and did not take into account that it was a murder.

Determination

Audio recording

37    There was no transcript of the Tribunal hearing before the Federal Circuit Court or before this Court. Relevantly, the appellant had been provided with the audio recording of the hearing in December 2014. By way of programming orders in the Federal Circuit Court, the primary judge had ordered that the appellant file and serve any affidavit containing additional evidence relied upon, including any transcript of the Tribunal hearing, by a given date. The appellant did not provide or seek to rely on such evidence before the primary judge. The appellant did not formally apply to rely on any transcript before me, but during his submissions he said that I should listen to the audio because it would reveal that he had said those things about his father's death before the Tribunal and had also 'said about the LTTE'.

38    Following the hearing, and after some consideration, I decided to listen to the audio which was provided to me upon request by the Minister's solicitors. I decided to listen to the audio recording taking into account both the appellant's request that I listen to it and that in some circumstances a transcript of proceedings may be relied upon to prove that claims were in fact advanced (see generally Kelly v Australian Postal Corporation [2015] FCA 1064; (2015) 67 ALR 359 at [51]-[53] (Griffiths J); Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [32]-[33] (Mortimer J). I treated the appellant's request that I listen to the audio recording as an application to rely upon evidence (whether by way of the audio or any transcript) that was not before the primary judge and I note the Minister opposed any such application.

39    The audio recording does not support the appellant's claim that he gave evidence before the Tribunal of the nature he asserts about his father's death. There is no evidence during the recording to that effect (noting the appellant was assisted by an interpreter at the hearing). There is mention of the police questioning him about any LTTE involvement but there is no statement by the appellant that he helped or supported the LTTE. He refers to assisting the TNA. The audio recording does not assist the appellant on this appeal.

Claims about the father's death

40    The Tribunal accepted the appellant's evidence about his father's death, including that the family had been told that he had been shot by the SLA. The death certificate did not advance matters - other than confirming his death, it did not identify that the SLA had killed his father. It was consistent with the appellant's evidence. Corroborative evidence was not required in circumstances where the Tribunal had accepted the appellant's claims (in contrast to the circumstances of, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (Robertson J)). The fact that the Tribunal's reasons did not expressly refer to the death certificate does not mean it was not taken into account by the Tribunal. No error on the part of the Tribunal is disclosed.

41    The Tribunal considered the chronology relevant to the appellant's claim, noting the early death of his father in 1990 and then giving specific regard to all conduct relied upon by the appellant after he returned to live in Sri Lanka, 13 years later in 2003, including the cousin's death in 2006. It then considered country information that indicated an improvement in the position for Tamils since 2009.

42    In my view, the primary judge carefully considered the question of whether proper regard was paid to the appellant's father's death and death certificate by the Tribunal and jurisdictional error is not established.

Claims that appellant said he helped and supported the LTTE

43    The appellant did not assert before the primary judge that he helped or supported the LTTE. Such a contention conflicts with the delegate's summary of his claims ('Without any evidence to the contrary, I accept the appellant's claim that he personally has had no association or involvement with the LTTE' (Appeal Book p 135)). A copy of the delegate's decision was provided to the Tribunal by the appellant. The Tribunal cites evidence given by the appellant that during questioning by the police in 2011 they asked him about his involvement and support for the LTTE. There is no reference to any evidence that the appellant claimed to be a member of the LTTE. His evidence before the Tribunal was to the effect that he provided support to Mr Ravi, a member of the TNA. In the three sets of written submissions provided to the Tribunal on behalf of the appellant, no claim is made that he supported the LTTE.

44    In those circumstances, the primary judge did not err in failing to consider a claim that was not made before her.

45    Further, the Minister submitted the appellant should not be able to raise this new claim on appeal, referring to VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [48] (Kiefel, Weinberg and Stone JJ):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit.

46    I accept the Minister's submission and consider that in all the circumstances the proposed ground referring to the new claim that the appellant was a supporter or helped the LTTE is of doubtful merit and decline to grant leave for it to be relied upon on appeal.

Claims about manner of cousin's death

47    The primary judge dealt with the Tribunal's findings about the appellant's cousin. The Tribunal accepted the graphic nature of the cousin's death. It clearly accepted that the cousin had been murdered. It made findings about the cousin's death and then considered the appellant's protection claims having considered all the evidence before it. No error in failing to take into account the cousin's death is established on the part of the Tribunal. The primary judge was right to find that jurisdictional error was not established.

Conclusion

48    I refuse the appellant's application to rely on the new grounds of appeal set out in the notice dated 19 May 2018, on the basis that they lack sufficient merit and have no real prospect of success. As to the ground relating to the appellant's alleged position as a supporter or helper of the LTTE, I also refuse leave to rely on that ground on the basis it was not raised before the primary judge and has no sufficient merit. Some evidence was provided as to the Minister's likely costs but there was no discussion of the issue at the hearing and in the circumstances I will make the usual order that the appellant pay the first respondent's costs to be assessed if not agreed.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Associate:

Dated:    19 September 2018