FEDERAL COURT OF AUSTRALIA
REFUGEE REVIEW TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised From Transcript)
1 The appellant is a citizen of Sri Lanka. He arrived in Australia without a visa on 8 August 2012 by boat, making him an “unauthorised maritime arrival”. On 31 December 2012, he applied under the Migration Act 1958 (Cth) for that class of visa known as a Protection visa (visa). A delegate of the predecessor in office to the Ministerial office, now known as the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), refused to grant that visa on 16 August 2013.
2 On 24 March 2015, the then Refugee Review Tribunal (Tribunal), for reasons given that day, decided to affirm the decision of the Minister’s delegate not to grant to the appellant the visa for which he had applied.
3 On 31 May 2018, the Federal Circuit Court dismissed with costs, the appellant’s judicial review application.
4 An interrogative note which might be sounded by the recited chronology as to the lapse in time between the Tribunal’s decision and the disposal of the judicial review application is explained in the Federal Circuit Court’s reasons for judgment (at para 2) by reference to an earlier judgment of the Federal Circuit Court dismissing an earlier judicial review application which was set aside by this Court by consent on 23 September 2015.
5 As originally formulated, the notice of appeal against the order of dismissal specified but one ground. That was that the learned Federal Circuit Court judge “committed legal error when dismissing proceedings in the Circuit Court without properly considering the grounds and arguments made”. That ground was formulated by the appellant without the benefit of legal representation at the time. It came to be the subject of an application for leave to amend the notice of appeal to add the following ground:
2. The court erred in not upholding the duty to ensure that the hearing was conducted fairly and in accordance with the law.
a) The applicant was unrepresented with limited English language ability and assisted by a Tamil interpreter.
b) The applicant was a failed asylum seeker;
c) The importance of the outcome of the matter;
d) The court below failed to explain the procedure to the applicant and give the applicant an opportunity to present his evidence in accordance with the rules;
e) The proceedings were not fair and affected the outcome.
6 It is a moot point as to whether anything that is specified in Ground 2, alleges a jurisdictional error which was pleaded before but rejected by the Federal Circuit Court or, for that matter, a jurisdictional error at all. In particular, I doubt whether particulars (c) and (d) under Ground 2 were issues at large in the Federal Circuit Court. Particular 2(a) does look to have been at large (see para 22 of the reasons for judgment in the Federal Circuit Court). That, in turn, looks to have been raised in conjunction with what is now particular 2(b) in the notice of appeal.
7 It is necessary to recall that the jurisdiction exercised by this Court is appellate, not original, in a matter such as this. So to raise an issue not raised in the original judicial review jurisdiction, exercised by the Federal Circuit Court, requires a grant of leave. Leave would ordinarily be granted, questions of any evidentiary embarrassment aside (and none arise here), only if a proposed ground were sufficiently arguable to warrant a grant of leave. That this particular new proposed ground pleads both issues that do look to have been raised below, as well as those which were not, adds an extra layer of difficulty in relation to whether to grant leave.
8 The grounds were the subject of full argument. Albeit, with some hesitation, my inclination is to deal with Ground 2 in all of its particularised manifestations on the merits rather than just dismissing the leave application on the basis that the ground, as proposed, does not have sufficient prospects of success to warrant a grant of leave.
9 The Tribunal recited the claims for protection as the Tribunal understood them at paras 11 through to and including 25:
11. The applicant made the following claims for protection in his visa application.
12. Things are very bad for Tamils in Sri Lanka. Armed groups and CID (Criminal Investigation Department) interrogate young Tamils whenever they want to.
13. The applicant is the President of the Rural Development Society (RDS) and the Hindu Temple.
14. In March 2012 they came at night and took him to a camp and interrogated him. They wanted to know about three people. The applicant said that he did not know about them. Because of his positions, they said that he should know. The applicant said that he is not always there because he works as a driver and was away most of the time. They beat him up and said if something happens in the village, the applicant will not live.
15. The applicant’s parents were scared and asked him to stay away from those activities.
16. The applicant spent more time in Jaffna and visited his home less.
17. The harassment continued, but towards his brother. The applicant’s father thought of sending him to India because getting the visa took time. Someone suggested that the applicant would be safe in Australia. His parents sent him to Australia with the help of smugglers.
18. In June 2012, CID visited the applicant’s office, but luckily he was not there. He found out three Singhalese were looking for him. They were scared again. His father said he may do the same as his brother and go to Australia.
19. They round up Tamils and interrogate them for any reason. Earlier in 2012, in his village in Pulliyamkullam, about 20 to 25 military came and rounded up several young persons, going from house to house and interrogated them. They go through the family card. If there is someone extra who is not on the list, they will interrogate them separately and take them away.
20. Earlier, when the applicant returned from Singapore, they rounded him up and wanted to know why he had left. During the interrogation, one of the security force people swing a plastic chair at the applicant. He tried to defend himself with his arm. The chair broke, hitting the applicant on the arm and his nose.
21. After the applicant’s brother left, they asked the applicant about him. He did not tell them that he had gone to Australia but said that he gone to India.
22. The applicant was scared for his safety and decided to leave Sri Lanka with the help of smugglers and come to Australia to seek protection.
23. The applicant believes that if he returns to Sri Lanka he would face a real chance of serious physical harm and could be killed by security agencies because of his race, religion, imputed political opinion and because he belongs to a particular social group that is a young Tamil.
24. The government will not help them because it is their security agencies and allies who harm
25. He cannot relocate to other places in the country because he can be traced anywhere.
10 It is necessary to set those out in full because, as developed, the attack on the Tribunal’s decision involved a submission as to a misunderstanding of the basis of the claim. In the Federal Circuit Court, the attack on the Tribunal’s reasons was more confined and focused upon what was termed “issue 2 – government job in Jaffna”. Given the way in which the appellant framed more broadly his attack, it would, in my view, do a disservice to the learned Federal Circuit Court judge separately to address in detail the way in which his Honour found no merit in issue 2. Suffice it to say, I do not see any error in his Honour’s reasons for judgment at paras 22 through to 26. It would serve no particular end to do other than address that more comprehensive challenge.
11 It is as well to commence addressing that with these observations. Firstly, the familiarity of encounter with what was said by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), in relation to not reading the reasons of that administrator narrowly and with an eye for error should not diminish the force of those observations. It is particularly necessary not to read paragraphs of a tribunal’s reasons in isolation from the reasons as a whole. Further, it is also necessary to remember that the reasons of the Tribunal will usually and for good reason be reactive not just to the material before the Tribunal, but to the way in which that material was presented in submissions made to the Tribunal. Thirdly, the Tribunal’s reasons and the Tribunal’s decision form part of an administrative decision-making continuum. While the Tribunal sits in place of a primary decision-maker, that is not to say that the Tribunal cannot take into account particular statements that were made by the appellant in this case, at an earlier stage in that administrative decision-making continuum. Those features are particularly necessary to recall in relation to the Tribunal’s reasons in the present case.
12 The continuum in terms of administrative decision-making is usefully commenced by setting out particular paragraphs from a statutory declaration made by the appellant on 13 December 2012, wherein he stated:
I left the country due to following reasons
1. Things are very bad for Tamils in Sri Lanka.
2. Armed groups and CID would interrogate young Tamils when they want.
3. I am president of the Rural Development Society (RDS) and the Hindu Temple.
4. In March 2012 they came at night and took me to a camp and started interrogating me. They wanted to know about 3 people and I said I do not know about them. They said I am the president of the society and Temple and I should know people in the area. I said I am not always there as I work as driver and most of the time away. But they beat me up and said if something happens in the village you will not live.
5. My parents were scared and asked me to stay away from these activities.
6. I started more being in Jaffna made less visits to my place.
7. But the harassment continued more to my brother now.
8. My father thought about sending him to India but the visa took time and someone suggested to the family that he can be safe in Australia, which offers help to refugees.
9. My parents sent my brother to Australia with the help of smugglers.
10. In June 2012, CID visited my office and luckily I was not there.
11. I came to know that 3 Singhalese people were looking for me.
12. We were scared again and my father said I may do the same as my brother and go to Australia.
13. I feared that I could lose my life if I stayed back.
14. We know they take away people and they never come back.
That was prior to the making of a decision by the delegate. The delegate asked questions of the appellant and reported in his reasons those answers. Materially, at appeal book p 167, the delegate recorded the following:
Regarding being questioned by the CID after his return from Singapore, the applicant stated this happened about two week after his return. He stated they came to his home and took him to their office in Trincomalee town where he was held overnight. He was asked questions about why he had gone to Singapore and told them it was because of the problems with the Karuna group. He was also asked questions about his knowledge of various people, who the applicant did not know. He states he was hit with a plastic chair and injured on his nose and arm, however he stated after his release the injuries were not so serious that they needed medical attention. He stated on his release he was warned that if he learns of anything suspicious in his village he needed to report it.
13 The delegate also recorded other answers given by the appellant. In particular, at appeal book p 170, it is recorded:
Regarding his claims that between 2008 and March 2012 he was called in for an enquiry between five to ten times and beaten on each occasion, I consider the applicant has fabricated this element of his claims.
The delegate’s rejection, of course, is of itself of no moment, the Tribunal having the role of considering the matter afresh. What is pertinent, though, is a subsequent statement made by the appellant via his then-legal representative in a submission to the Tribunal of 6 August 2014. That was reactive to what had earlier transpired in the administrative decision-making continuum, and, materially, it is stated in that letter under the heading “Background”:
Due to continually being harassed by the CID from 2008 to 2012, he departed Sri Lanka on July 2012, where he applied for protection.
14 In the Tribunal’s reasons, under the heading “Consideration and Findings”, the following passage appears. It is somewhat lengthy but it is necessary to set it out in full so as to do justice to the argument advanced on behalf of the appellant:
68. When the Tribunal asked the applicant if his driving job was a good job, he said yes, but he could not continue because of the problems he was facing. The applicant claimed that towards the end of the problems, he went to Jaffna and stayed there. His younger brother remained near Trincomalee.
69. As set out in the background section above, the applicant moved to Jaffna because the office moved and the Commissioner moved. The impression his claims give is that he moved there because of the CID interrogation. That was not the case.
70. In his visa application, his claim for protection is based on CID’s interest in him beginning in March 2012 because he was the President of the RDS. They wanted to know about three people. He claimed that following that interrogation, he spent more time in Jaffna and visited his home less. The harassment continued but towards his brother. The applicant refers in his visa application to being rounded up by CID after he returned from Singapore. They wanted to know why he had left. He was injured by a plastic chair being swung at him. There is no further claim linking that incident with the claimed 2012 events.
71. He claimed that three were two reasons for his leaving Sri Lanka. First, in June 2012 three Singhalese visited his office in Jaffna when he was not there, which lead to his father staying that he may do the same as his brother and go to Australia. At the Tribunal hearing, the applicant claimed that his father arranged for his brother to leave because his brother was arrested and questioned and his brother’s wife was very frightened and asked his father to make that arrangement. He does not know why his brother was arrested and questioned.
72. The applicant also claimed that after his brother left, “they” asked the applicant about his brother. The applicant was scared for his safety and decided to leave Sri Lanka with the help of people smugglers.
73. The applicant told the Tribunal he did not know what his brother’s claims for protection are.
74. In summary, the applicant claimed both that his brother was harassed by CID because of the applicant who spent more time in Jaffna and the harassment shifted to his brother, and that he did not know why his brother was arrested and questioned. His brother left Sri Lanka first. The applicant also claimed that his brother’s departure and CID’s questioning of the applicant after that was a reason for his leaving.
75. The Tribunal does not accept that the CID had a continuing interest in the applicant from after his return from Singapore until he left in July 2012. It does accept that he was interviewed after his return from Singapore in October 2008 and that he was injured. However, the visa application claim does not refer to continuing CID interrogations, harassment or arrested. The Tribunal takes into account his explanation that his lawyer told him to refer to the most recent incidents and during the entry interview he did not have any time and was told to talk only about recent issues, but does not accept those explanations.
76. At the end of the hearing the representative submitted that the entry interview was part of the applicant’s claim and referred specifically to pages 11, 12, 13 and 14. At page 14, the interviewer asked the applicant why left Sri Lanka. The applicant said that he was the President of RDS and the temple. In March 2012, they came, took him to a camp and interrogated and beat him. He said that they asked him about going abroad in 2007 and about the names of two or three people and then left him. That he was asked about going abroad in 2007 was not otherwise mentioned in relation to that March 2012 incident. Again, he did not mention a history of CID or armed group interrogations since his return from Singapore. Those claims reinforce the Tribunal in not accepting the applicant’s claims about the March 2012 incident or that the CID continuously approached him and questioned him from about October 2008.
77. The Tribunal does not accept that he would have got a government job at the end of 2009, beginning of 200, if CID had an adverse interest in him from his return from Singapore in October 2008, and that he would have been able to retain it until leaving of his own volition in July 2012. The Tribunal takes into account the applicant’s explanation that CID is separate from the administration of government and that criminal convictions are taken into account in relation to government employment, but he had no such conviction, but CID is not involved. The Tribunal does not accept that explanation. The applicant’s claims of harm that he fears CID will inflict upon him reflect and all-powerful agency which would be capable of preventing an individual being given or keeping a government job if it had an adverse interest in him. Similarly, the representative submitted that in New South Wales, the head of a bikie gang was head of the NSW roads authority, which shows that the applicant could have got a job and remained in it despite CID’s ongoing interest in him. The Tribunal does not accept the representative’s submission. It has no country information supporting the factual basis for it and the Tribunal does not accept that if CID wanted to harm the applicant as he claimed, that they would have permitted him to continue to work in what he acknowledged was a good job as an employee of the Sri Lankan government, of which the CID is an instrument.
78. The Tribunal does not accept that the applicant was of interest to the CID because of his role as President of RDS or his role in the temple. His visa application sets out the March 2012 interrogation as the first incident arising because of that role. He told the Tribunal it was in May 2012. He told the Tribunal that he was president from the end of 2009 until he left Sri Lanka. It is not apparent why CID would suddenly become interested in the applicant in 2012 because of his position in RDS which he had held from the end of 2009.
79. He also told the Tribunal that CID had first questioned him in his role as President of the RDS in 2010. They asked him about a protest. If CID wanted information, they took him and questioned him. That was after the war. They asked him about missing people because he was president and involved in politics. The applicant told CID he did not inform about missing people. He was beaten.
In turn, what is stated in the passage quoted, informed the Tribunal’s findings at paras 104, 105, and 106.
15 Turning, then, to the asserted jurisdictional errors by the Tribunal as particularised under Ground 2 particular (a) is premised upon an alleged misapprehension by the Tribunal as to the occasion for his moving from Trincomalee to Jaffna. This looks to have been the same point that was advanced in the Federal Circuit Court. In particular, it is said that the Tribunal’s statement at para 69:
The impression his claims give is that he moved there because of the CID interrogation.
was not reasonably open.
16 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909, at , Gummow and Heydon JJ, with whom in this regard Gleeson CJ agreed, in the course of addressing why the rule in Browne v Dunn (1893) 6 R. 67 had no application in a proceeding before the Tribunal, made, at para 57, this observation:
The tribunal member has not “client” and has no “case” to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client’s cases to the witnesses if they want to be as sure as possible of success. They have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive – namely, means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred.
Their Honours then added, significantly, for present purposes:
There, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out.
17 Likewise here, it was for the appellant to advance, as best he could, by his own oral evidence and by the tendering of other material his claim for a Protection visa. If it transpired that the way in which he advanced his claim admitted of a particular impression being formed reasonably by the Tribunal, it is not for the Federal Circuit Court on judicial review, much less this Court on appeal, to find jurisdictional error in the formation of that impression; see in this regard Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at  and  per Crennan and Bell JJ. When I look at the sequence in which the excerpted paragraphs from the appellant’s statutory declaration of 15 December 2012 are cast, in conjunction with the way in which the background to the claim was put to the Tribunal by his then lawyers in 2014, I do not see that the impression recited by the Tribunal at para 69 of the Tribunal’s reasons was other than reasonably open.
18 This is not a case where it is put that there has been some error in translation of the appellant’s evidence. Instead, the impression recited by the Tribunal is just one reasonably open, in my view, as a matter or ordinary English, from the way he presented his claim in his statutory declaration. The Tribunal did not, in terms, state that the conclusion it reached at para 69 informed the credibility finding made at para 75 but a fair reading of the Tribunal’s reasons does disclose that. It did so inform the absence of acceptance that the CID had a continuing interest in the appellant after his return to Singapore and until he left in July 2012. On the basis that what is stated in para 69 is a conclusion reasonably open, that conclusion, in turn, was one capable reasonably, in conjunction with what followed para 69, of informing the Tribunal’s absence of acceptance of a continuing interest in the appellant by the CID. So there is no merit in particular (b) under Ground 2.
19 Particular (c) centres around para 77 of the Tribunal’s reasons. What is set out in that paragraph of the reasons is reactive to a very particular submission, recited in that paragraph, made on behalf of the appellant, as well as to the particular highlighting of continuing CID interest in the background in the appellant’s lawyer’s 2014 letter.
20 The appellant’s case, as presented, was one of a pervasive interest and influence by the CID in him as part of an overall interest by the authorities in Sri Lanka in him. The Tribunal’s reasoning that such interest was inconsistent with his being offered and retaining a government job after his return from Singapore in October 2008 was logical and, if that be any different, logical and certainly reasonably open. There is no merit in particular (c).
21 As to particular (d), the Tribunal did not, in precise terms, deal with a claim of an incident in June 2012. Rather, what the Tribunal did, at para 75, was just not to accept that the CID had any continuing interest in the applicant. The Tribunal made that statement in response, materially, to an expressed recitation of a statement which the appellant had made as to an alleged incident in June 2012; see para 71. To read para 75 as other than a rejection of the appellant’s account of ongoing interest in all its manifestations in him after his return from Singapore is, in my view, to do violence to the cautionary note sounded by the High Court in Wu Shan Liang in relation to the reasons of administrators.
22 Lest it be thought that it has passed unnoticed and in fairness to the learned Federal Circuit Court judge, I should also set out para 53 of the Tribunal’s reasons:
53. When he returned to Sri Lanka the applicant was at home with his father for about a year. From the end of 2009 or the beginning of 2010, until two or three days before he left for Australia on 9 July 2012, he worked for the Sri Lankan government as a driver of a double cab vehicle in which he transported the Commissioner of Lands for the Northern Province, who was a Tamil. The applicant was employed by the Sri Lankan government Department of Land Administration. The Commissioner of Lands lived in Trincomalee. The applicant transported the Commissioner to and from his home to his office and sometimes visited areas including Mannar and Jaffna. The office moved to Jaffna towards the end of 2011. The applicant told the Tribunal, and it accepts, that the Land Commissioner’s office was transferred to Jaffna towards the end of 2011 and the Commissioner moved there. The applicant stayed in living quarters in Jaffna associated with the Department of Lands. He went home to Puliyankulam once every three or four weeks.
It is this paragraph which provided the foundation for the Tribunal’s statement at para 69 as to “that was not the case”. What the Tribunal is there saying takes up the appellant’s evidence that the occasion for a move to Jaffna was just associated with a change in the location of the Government department office, in which he worked at the end of 2011. It was that particular foundation which informed a rejection by the learned Federal Circuit Court judge of an attack made before that Court under the issue of the government job in Jaffna.
23 It may readily be accepted that a failure on the part of the Tribunal to appreciate the integers, as they are termed, of a claim for a visa and not then to address those integers is indicative of jurisdictional error; see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. It is up to an applicant for a visa to specify the integers. Granted these must be read with due allowance for a lack of facility and varying understanding of the English language, but if in the specification of the integers an applicant creates a particular impression, then there is no jurisdictional error to be found in the Tribunal addressing the claim by reference to that impression. That is really all that the Tribunal did in the present case. It did so for reasons which are logically expressed on the basis of conclusions reasonably open in terms of the material before the Tribunal.
24 For these reasons the appeal must be dismissed.