FEDERAL COURT OF AUSTRALIA

ANC16 v Minister for Immigration and Border Protection [2018] FCA 1831

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    On 20 November 2018, I ordered that the appeal be dismissed with costs. These are the reasons for those orders.

2    This is an appeal from a judgment of Judge Riley of the Federal Circuit Court of Australia (the ‘FCC’). The FCC dismissed an application to review a decision of the second respondent (the ‘Tribunal’) which affirmed a decision to refuse the appellant a protection visa.

3    The first respondent (the ‘Minister’) submits that contrary to the grounds in the notice of appeal, the FCC correctly concluded that:

(1)    the Tribunal did not fall into error by failing to take into account relevant considerations (‘ground 1’);

(2)    there was no obligation on the Tribunal to make further inquiries of the Red Cross, and therefore no jurisdictional error in it not doing so (‘ground 2’); and

(3)    the Tribunal did not act unreasonably in finding that the appellant was not a witness of truth and that he did not face a real chance of serious harm or significant harm (‘ground 3’).

BACKGROUND

4    The appellant is a Sri Lankan national of Tamil race. He arrived in Australia on 16 August 2012 as an unauthorised maritime arrival. He travelled to Australia with one of his brothers (the ‘first brother’).

5    The appellant applied for the visa on 16 January 2013. A delegate of the Minister made her decision on 16 April 2014 to refuse the appellant a protection visa.

6    On 23 April 2014, the appellant applied to the Tribunal for review. On 12 February 2016, the Tribunal made its decision to dismiss the application.

PROTECTION CLAIMS

7    In his entry interview on 20 August 2012, the appellant relevantly claimed that after the discovery of a weapons cache near their home, he and his family had been mistreated by authorities, including up until the time of his departure.

8    The appellant applied for the visa on 16 January 2013. His claims for protection were set out in an attached statutory declaration in which he relevantly claimed that:

(1)    one of his brothers (the ‘second brother’) joined the Liberation Tigers of Tamil Eelam (‘LTTE’) in 1998 and has not been heard from since;

(2)    the Sri Lankan Army (‘SLA’) has inquired of the family about the second brother’s whereabouts, and suspects the family of involvement too;

(3)    between mid-2008 and mid-2012, the Criminal Investigation Department of the Sri Lanka Police (‘CID’) would visit his house and demand he report to their camp the next day and continued to ask questions about the weapons; and

(4)    the SLA will harm him on his return because his escape from Sri Lanka will be seen as proof that he was an LTTE member and involved with the weapons cache in 2006.

9    The appellant provided various documents in support of his application.

10    In a further statutory declaration provided to the Tribunal the appellant relevantly claimed that:

(1)    in October 2014 another of the appellant’s brothers (the ‘third brother’) was arrested, detained and beaten by CID for 3 months, on suspicion of being a member of the LTTE and participating in attacks on security force personnel. During the interrogation he was questioned about the second brother, whom authorities suspected was still alive. He was released following orders being made requiring him to report to authorities and restricting his movement; and

(2)    a further brother of the appellant’s (the ‘fourth brother’) has fled Sri Lanka and registered as a refugee in Germany.

TRIBUNAL DECISION

11    The Tribunal noted that it had taken evidence from the second brother (the brother with whom the appellant travelled to Australia), in separate proceedings: [47]. The Tribunal found that there were inconsistencies between the evidence given by the appellant and the evidence given by the second brother, and accordingly the Tribunal considered that their evidence did not corroborate each other’s claims. The Tribunal found that both the appellant and the second brother were not witnesses of truth: [47].

12    The Tribunal had a number of significant concerns about the appellant’s evidence. The Tribunal identified a range of implausibilities and internal inconsistencies in the appellant’s evidence (see eg [48]-[53]), and found that he changed some of his evidence after the Tribunal put certain matters to him (eg [51]) and raised new claims for the first time late in the review proceeding (eg [54]).

13    The Tribunal referred to the fact that the appellant had claimed that the Red Cross could corroborate the third brother’s arrest in 2014: [57]. The Tribunal found that notwithstanding a claim that the Red Cross had given the family a letter confirming the arrest, no such letter had been provided to the Tribunal: [57]. The Tribunal accepted that the appellant had provided a card issued by the International Committee of the Red Cross. However, it noted that the only details on the card were a reference number and a name, and that the card did not contain any telephone numbers: [57]. The Tribunal determined not to pursue further inquiries of the Red Cross or with the Human Rights Commission of Sri Lanka: [57]. It held that the Tribunal is not generally required to make out an appellant’s case and to investigate claims by making inquiries beyond the material presented by the appellant: [57]. In particular, the Tribunal was not satisfied that there was an “obvious inquiry” about a critical fact, the existence of which could be readily ascertained by inquires of the Red Cross: [57]. The Tribunal noted that there was no evidence that the appellant’s representative had made any inquiries itself of the Red Cross or the Human Rights Commission of Sri Lanka to ascertain what evidence those bodies might be capable of providing: [57]. The Tribunal found that the various deficiencies and problems with the appellant’s evidence should be given greater weight than the documents said to support the appellant’s evidence, including the Red Cross card: [58].

14    Although the Tribunal accepted that the appellant had a brother, who joined the LTTE in the 1990s, and that a weapons cache had been found in the appellant’s town, it otherwise disbelieved the appellant: [58]-[59]. In particular, the Tribunal did not accept the appellant’s claims that ([58]-[59]):

(1)    he was rounded up and questioned after the discovery of the weapons and required to report to the CID periodically;

(2)    he was subject to a reporting regime before he departed Sri Lanka in 2012, and will be regarded as having departed the country without permission;

(3)    the third brother was arrested in 2014 on suspicion of being a member of the LTTE and detained and tortured; and

(4)    the third brother remains under reporting conditions in Sri Lanka.

15    Having rejected the appellant’s particular claims to have suffered harm in the past, and considering country information about conditions for Tamils in Sri Lanka, the Tribunal was not satisfied that the appellant faces a real chance of persecution for reason of his race as a Tamil: [60]-[61].

16    The Tribunal found that whilst the appellant would be returning to Sri Lanka as a failed asylum seeker, and would be interviewed on his arrival by various authorities, this process would not involve a real chance of any mistreatment: [63]. Similarly, the Tribunal accepted that the appellant would be contacted by police on his return to his home village, but did not accept that there was a real chance they would persecute the appellant: [64].

17    The Tribunal also accepted that as someone who departed Sri Lanka illegally, he would be arrested and charged with offences under the Immigrants and Emigrants Act (Sri Lanka) (the ‘I&E Act’) and eventually convicted and fined: [66]. The Tribunal considered country information about procedures for identifying, charging and remanding returnees who are suspected of breaching the I&E Act. It found that this treatment would involve the non-discriminatory application of criminal laws, and would not amount to persecution: [66].

18    The Tribunal was not satisfied that the appellant has a well-founded fear of persecution for reason of his race, real or imputed political opinion, or any other reason: [68]. It therefore concluded that he did not meet the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the ‘Act’).

19    In considering whether the appellant satisfied the complementary protection criterion in s 36(2)(aa) of the Act, the Tribunal largely relied upon its findings of fact in the context of the refugee criterion. It further considered whether the appellant would face a real risk of significant harm as a result of a period of detention on remand after being charged with offences under the I&E Act: [72]-[76]. In particular, the Tribunal found having regard to the appellant’s circumstances that there was no more than a remote risk that he would spend any longer than a fortnight in jail on remand: [74]. Additionally, the Tribunal was not satisfied that his experience on remand would satisfy the intention requirement in the definitions of significant harm: [76].

GROUNDS OF APPEAL AND SUBMISSIONS

20    The appellant’s three grounds of appeal reflect the grounds relied upon in the FCC. The appellant contends that the FCC erred by not holding that the Tribunal fell into error on those grounds.

Ground 1

21    This ground has 3 particulars. They were dealt with separately by the FCC as grounds 1(a)-(c).

1(a) - failure to consider evidence from the appellant’s brother

22    By ground 1(a) the appellant seeks to establish that the Tribunal failed to have regard to the evidence given by the brother with whom the appellant travelled to Australia and “whether it may have tended to confirm the evidence and claims of the appellant”. The FCC held that the Tribunal had plainly considered the brother’s evidence, and in particular, whether it corroborated the evidence of the appellant. It expressly found that it did not.

23    The FCC was correct to find that the Tribunal did have regard to this evidence. The Tribunal expressly considered whether the appellant’s brother’s evidence corroborated the appellant’s claims: [47]. It found that “there were inconsistencies between [their evidence]… which mean that he and his brother do not benefit as they would have done if they had independently given mutually corroborative evidence”: [47]. The appellant’s real complaint before the FCC was that the Tribunal did not believe the appellant’s brother’s evidence. It is not open to him to invite the FCC or this Court to substitute its own view of the evidence.

1(b) - Tribunal did not consider the possibility that the discrepancies in the appellant’s evidence were the result of the trauma he claimed to have suffered

24    By ground 1(b) the appellant argues that the Tribunal failed to consider whether deficiencies in the appellant’s evidence were due to past torture and trauma. In the FCC, the appellant conceded that no such claim was made expressly by the appellant, but contended that the possibility that the deficiencies in his evidence was due to part torture arose on the materials and therefore had to be considered on that basis. The FCC held that the Tribunal considered and rejected the appellant’s claims to have been tortured, and therefore the possibility that such torture explained deficiencies in his evidence “did not arise on the accepted facts” and there was no need for the Tribunal to consider it.

25    The FCC was correct to find that having considered and rejected the claims of past torture, it was not necessary for the Tribunal to proceed to consider whether the occurrence of such torture explained any difficulties in the appellant’s presentation of his evidence.

1(c) - whether a family member was available to be guarantor

26    By ground 1(c) the appellant argues that the Tribunal failed to take into account an integer of his claims relating to his unlawful departure. The relevant background to this ground is that there was information before the Tribunal from DFAT to suggest that someone charged with unlawful departure may not be bailed until a family member was able to attend court to act as guarantor. Therefore, the risk of harm to the appellant as someone charged and held on remand would be greater as his detention on remand might be prolonged if no family member was available to act as guarantor for him. The appellant argued that the Tribunal had not considered whether such a family member might be unavailable, and his detention might thereby be prolonged.

27    The FCC rejected this ground on two bases. First, the FCC held that no such claim relating to the appellant being unable to rely on a family member to appear for him was expressly made or arose on the material before the Tribunal. Second, and in any case, the FCC accepted that the findings in fact made by the Tribunal were dispositive of any claim relating to family members acting as guarantors or not.

28    The FCC was correct to make these findings.

Ground 2

29    By ground 2 the appellant contends that the Tribunal fell into error by failing to make inquiries. Before the FCC, the appellant argued that the Tribunal should have made inquiries of the Red Cross using the details set out in a ‘receipt’ purporting to be from the Red Cross. A copy of that document was provided to the Tribunal in the appellant’s brother’s review application. Although the appellant’s brother had informed the Tribunal that there was also a letter from the Red Cross which would be provided, no such letter was ever produced. The appellant contended that the information in the receipt could have been used to easily obtain evidence by telephone that would have been potentially determinative of the review.

30    The FCC held if indeed it was information that was easily obtained, then the appellant could himself have obtained it. Notably, the appellant had failed to produce the Red Cross letter which he had referred to and undertaken to provide. In relation to the receipt, the FCC held that it contained no details about the relevant circumstances of the brother, and it was not even clear that it related to the appellant’s brother at all. The FCC further held that there was no evidence before it of how a relevant telephone number would have been obtained, how easy it would be for a call to be put through to the relevant person, and what that person would have been able to say about the appellant’s brother. In these circumstances the FCC was not satisfied that ‘there was an obvious inquiry that could easily have been made and that the Tribunal should have made’.

31    The FCC was correct to find that there was no jurisdictional error by the Tribunal in not making inquiries of the Red Cross. The Tribunal has an imperative duty to conduct a review: s 414 of the Act. As was noted by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, it ‘may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review’. Regard must be had to all of the relevant circumstances, but the courts have emphasised that the circumstances in which a failure to make inquiries will result in a failure to conduct a review and jurisdictional error will be rare and exceptional.

32    The appellant knew that the Tribunal had significant doubts about his claims that the third brother was detained and tortured in 2014: [42]-[44]. His representative actually stated that a letter from the Red Cross would be provided: [57]. No such letter was forthcoming: [57]. The card that was produced simply contained a name and a reference number and was of very limited probative value as evidence of whether the brother had in fact been detained, and the reasons for his detention. The appellant had every opportunity to provide further information from Red Cross, whether in the form of the letter he had alluded to or otherwise, but the appellant did not do so. The Tribunal was not required to do what the appellant had not done.

Ground 3

33    By the third ground the appellant contends that the Tribunal acted irrationally or illogically and unreasonably. The ground has 2 particulars.

3(a) - whether the appellant was a witness of truth

34    This particular complains that it was unreasonable for the Tribunal to find not merely that it was not satisfied of the claims, but that the Appellant was not a witness of truth. The appellant argues that the basis for this finding was “flimsy”. The FCC rejected this argument on the basis that there were “matters, too numerous to mention” which together provided a rational basis for the Tribunal’s conclusion that the appellant was not a witness of truth.

35    The Tribunal identified a number of factors which led it to disbelieve the appellant. These included its assessment that much of his evidence was implausible, that there were inconsistencies within the appellant’s evidence, that the appellant changed his evidence when challenged by the Tribunal, and that he raised claims late in the proceeding. These matters provided a logical basis for disbelieving the appellant’s evidence. Once the Tribunal disbelieved the appellant’s evidence, it was open to it to find that he was not a witness of truth.

3(b) - cumulative factors

36    The second particular to ground 3 complains that it was irrational or illogical for the Tribunal to not be satisfied that there was a real chance of harm to the appellant notwithstanding that it accepted certain claims, including that the second brother joined the LTTE in the 1990s, and the appellant would be returning to Sri Lanka after several years, and as an illegal emigrant. The FCC dismissed this argument on the basis that this was a matter on which reasonable minds might differ. That conclusion was correct.

CONCLUSION

37    There is no appealable error in the FCC’s judgment and no jurisdictional error in the Tribunal’s decision. Accordingly, the appeal was dismissed with costs.

Associate:

Dated:    22 November 2018