FEDERAL COURT OF AUSTRALIA

BSY16 v Minister for Home Affairs [2019] FCA 140

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the Minister for Home Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1    The appellant appeals from a decision of the Federal Circuit Court of Australia made on 28 May 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 29 June 2016.

2    The Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) not to grant the appellant a protection visa.

ADJOURNMENT application

3    At the hearing of the appeal, the appellant applied for an adjournment. The relevant factual background was:

(1)    The appellant was represented by solicitors and counsel before the Federal Circuit Court, which delivered judgment on 28 May 2018. Before that case, his case had been before the Refugee Review Tribunal (whose decision had been set aside by orders of the Federal Circuit Court on 17 June 2013) and then the Administrative Appeals Tribunal.

(2)    The appellant electronically lodged his notice of appeal on 5 June 2018. It is not clear whether he had assistance in drafting that document, however, as will be seen, the ground of appeal was intelligibly drafted and appropriately focussed attention on the procedure and judgment of the Federal Circuit Court.

(3)    The appellant was informed by email from this Court sent on 9 October 2018 that his appeal had been listed for hearing in Perth on 15 November 2018.

(4)    The matter was transferred to Sydney, pursuant to a request made by the appellant after 9 October 2018. The Court later informed the appellant that his matter was allocated today’s hearing date.

(5)    At the hearing of the appeal, the appellant stated that he had discussed his case with a barrister on 5 February 2019, or perhaps several barristers on that day, but that none were available to appear and that each required further time.

(6)    There was no evidence that any barrister had agreed to provide assistance, or when such assistance could be provided. There was no particular period of time sought for an adjournment.

4    The discretionary power to grant an adjournment is to be exercised judicially taking into account all relevant circumstances including the proper administration of justice.

5    Whilst there is no absolute entitlement in a party to be legally represented before the Court, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted. The weight to be given to that desire is affected by various matters including what steps the appellant has taken to obtain such representation, and any explanation for delay in that respect, the likelihood of the appellant obtaining legal representation and the time required for the appellant to do so.

6    The application for an adjournment was refused for the following reasons:

(1)    The appellant engaged the appellate jurisdiction of this Court on 5 June 2018 and has had ample opportunity to secure legal representation.

(2)    The transfer of the matter from Perth to Sydney also had the effect of transferring the hearing date from the November Full Court Sittings to the February Full Court Sittings. This had the effect of providing a de facto adjournment.

(3)    The ground advanced in the notice of appeal is intelligible and focusses attention on the events which occurred in the Federal Circuit Court. The Court has had the benefit of reading the Tribunal’s lengthy and detailed reasons and the succinct and considered reasons of the Federal Circuit Court.

(4)    It did not appear from a review of those decisions and the ground of appeal, that the appellant would be unfairly disadvantaged by the lack of legal representation, particularly having regard to the next matter.

(5)    The Court is cognisant of difficulties faced by litigants who have not secured legal representation and approaches the hearing of appeals in these circumstances in a way conducive to ensuring appellants are properly heard and that they are not unfairly disadvantaged by their difficult situation – see: MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] (Mortimer J).

background AND REASONS OF THE TRIBUNAL

7    The background was set out by the Federal Circuit Court at J[2] to J[8] of the judgment in terms which were not suggested on appeal to be in any way incorrect (footnotes omitted):

[2]    The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 11 May 2012. On the following day he engaged in what is called a “Biodata” interview with an officer of the Department of Immigration. On 23 May 2012, the applicant was again interviewed by an officer of the Department. This interview was called an “Irregular Maritime Arrival Entry Interview”.

[3]    On 27 July 2012, the applicant lodged an application for a protection visa. The following summary of his claims is taken from the applicant’s written submissions filed on 30 January 2018 (January submissions), which may be accepted as accurate for present purposes:

  12.1.    The applicant’s brother in law was shot by the army in 1988.

12.2.    The applicant was suspected, interrogated or falsely accused in relation to the death of a senior Singhalese police officer during riots in 2005 because he was an auto-rickshaw driver.

  12.3.    A colleague of the applicant was killed in January 2006.

12.4.    One of the applicant’s distant relatives with a similar name was abducted and killed because he was believed to have been involved in the riots and the killing of the police officer.

12.5.    The army came to the applicant’s shop in 2006, beat his friend up and confiscated bicycles and tools because they blamed the applicant for a nearby bomb blast.

12.6.    The applicant [had] closed his bicycle repair business and worked as a driver from home one month after the incident ...

12.7.    In January 2007, a distant relative of the applicant, a fellow auto-rickshaw driver, was abducted by army people in a white van and killed. The day before he was shot and killed, the applicant’s relative had told the applicant that the army had come to his house asking for directions.

12.8.    A relative of the applicant with a similar name was caught and beaten by the Sri Lankan army.

12.9.    The SLA visited the applicant’s home on three occasions between January and December 2007 but he was not home.

12.10.    The applicant resided in the homes of his relatives before obtaining a pass to travel to Colombo from Jaffna through the assistance of his sister who knew someone in the EDPD.

12.11.    The applicant resided in Chennai, India between 27 December 2007 and 25 April 2012. The applicant travelled to India with his sister on a medical visa.

12.12.    The applicant was interrogated by officers of the Indian intelligence organisation, Q Branch, as to whether he was part of the LTTE.

12.13.    The applicant left India in part, due to the problems he faced with the Q police and because he had no rights in India as he was registered as a refugee.

12.14.    In 2012, the applicant’s brother telephoned him and said that the LTTE had come to his house.

12.15.    The applicant’s brother-in-law’s brother was a former member of TELO who was killed in March 2015.

The applicant claimed to fear serious harm on return to Sri Lanka because of:

  13.1.    His ethnicity as a Tamil;

13.2.    His imputed political opinion as having perceived involvement or links with the LTTE and as a resident in the North.

13.3.     His membership to particular social groups comprising failed Tamil asylum seekers returning from a Western country, former Indian refugees who are returned involuntarily from a Western country as failed asylum seekers and three wheeler drivers who originate from the North of Sri Lanka.

[4]    On 11 September 2012, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal (RRT) for review of that decision.

[5]    The RRT held a hearing on 4 December 2012 and made a decision on 11 March 2013 to affirm the decision of the delegate. However, that decision was set aside by orders made in this Court on 17 June 2013 and the matter was remitted to the RRT for completion of the review of the delegate’s decision.

[6]    The RRT was differently constituted for the purposes of completing the review and the applicant attended two further hearings before the RRT on 23 September 2013 and 18 December 2014.

[7]    On 1 July 2015, the Tribunal assumed the functions of the RRT and continued the review of the delegate’s decision. On 5 August 2015, the Tribunal was reconstituted because the member who had previously constituted the RRT ceased to be a member of that body on 30 June 2015 and did not become a member of the Tribunal. There is no issue in these proceedings about that reconstitution. The Tribunal conducted a hearing on 2 November 2015, following which further written submissions and other information were provided by the applicant’s representatives on 9 November 2015.

[8]    On 29 June 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

8    The Tribunal’s reasons were carefully and extensively set out. The primary judge said of them:

[9]    The Tribunal’s reasons for decision are set out in a 78 page document in which the Tribunal sets out in considerable detail the procedural background to its decision, each of the claims and submissions made by the applicant, the country information relating to the circumstances that might affect the applicant upon return to Sri Lanka, and its assessment of all those matters. It is, on any view, a comprehensive set of reasons.

[10]    The aspects of the Tribunal’s reasons which are the focus of the grounds of judicial review are addressed in some detail below. For present purposes, and without any disrespect to the Tribunal’s detailed reasoning, it may simply be noted that the Tribunal rejected the bulk of the applicant’s claims because it found that the applicant was not a witness of truth. Further, it found that there was no real chance that the applicant would be suspected of being an LTTE supporter or having links with the LTTE or as having an anti-government profile or would be so suspected in the future. It found that the applicant would not suffer persecution because of his Tamil ethnicity or as an involuntary returnee and in particular as a returnee asylum seeker. For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

9    It is not necessary for the purposes of this appeal to set out the Tribunal’s reasons in detail. However, it is convenient to set out the conclusions expressed at T[356] and T[359] to T[365] which are particularly relevant to the Federal Circuit Court’s decision and to this appeal:

[356]     The Tribunal has considered whether there is a real chance of serious harm in the reasonably foreseeable future. The UNHCR Eligibility Guidelines for Sri Lanka have identified risk profiles of those persons who may be in need of international protection. The UNHCR Eligibility Guidelines indicate that persons suspected of certain links with the LTTE may be in need of protection. The Tribunal has considered the applicant's claim that he will be suspected of being an LTTE supporter or having links with the LTTE, or being antigovernment, by the authorities or paramilitaries linked to the authorities, if he returns to Sri Lanka. The Tribunal has considered the applicant's claim that this is related to his identity as a Tamil from the Eastern Province and young Tamil male. The Tribunal is not satisfied, on the evidence before it, that there is a real chance that the applicant will be suspected of being an LTTE supporter or having links with the LTTE, or being anti-government, by the authorities or paramilitaries, if he returns, for the following reasons. Based on its assessment that the applicant is not a credible or truthful witness, the Tribunal does not accept the applicant's claims that his family's business was bombed by the Karuna Group or any other paramilitary group, the military or any other group or individual. The Tribunal does not accept that the Sri Lankan authorities, men in white vans, the Karuna Group, any other paramilitary group linked to the authorities or any other group or individual had any ongoing interest in the applicant or any family member, nor that there is a real chance that they will do so in the reasonably foreseeable future.

[359]    Based on the independent country information, in combination with its assessment of all of the applicant’s circumstances, the Tribunal does not accept that the applicant would be perceived as anti-government, or supportive of LTTE merely because of being a returnee asylum seeker or because he departed illegally. The Tribunal is not satisfied there is a real chance of persecution for any Convention reason in Sri Lanka based on his circumstances, individually or cumulatively, as a Tamil male, young Tamil male, unmarried Tamil male, Tamil male from the North, returned asylum seeker from a Western country/Australia, and his form/mode of departure, or any combination of these factors.

[360]    On the basis of all the evidence, the Tribunal is not satisfied that there is a real chance of serious harm on the basis of actual or imputed political opinion on the basis of his claim as a suspected LTTE member, supporter or the member of a family with the same level of suspicion, were the applicant to return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal does not accept his claims that he will be killed, arrested or tortured, as the Tribunal does not accept that he is a person of any adverse interest to the Sri Lankan authorities or to anyone else. Nor does the Tribunal find that the applicant or any other family member suffered harassment or persecution from the army, CID, any paramilitary group or any other group or individual or that he will suffer such harassment or persecution in Sri Lanka in the reasonably foreseeable future.

[361]    The Tribunal has considered the applicant’s claims that he will suffer persecution because of his race as a Tamil or Sri Lankan Tamil. There is sufficient information to indicate that at least up to the end of the civil war in May 2009, Sri Lankan citizens who were Tamils faced an appreciable risk of persecutory harm at the hands of the authorities because of their Tamil race, particularly those in the north and east of the country. However, by the time of this decision in June 2016, the security situation has stabilised, and while many problems remain in the country, the sources indicate that Tamils are not being persecuted just because of their race. This also leads the Tribunal to reject the applicant’s claim he will be persecuted everywhere in Sri Lanka, because he is Tamil.

[362]    The most recent UNHCR Guidelines, released December 2012, do not identify Tamils or Sri Lankan Tamils as one of the risk profiles in need of protection. However, the UNHCR Guidelines also indicate that each case needs to be dealt with on its merits. In this case, however the Tribunal is not satisfied there is a real chance of serious harm on the basis of his race. The Tribunal does not accept that he has suffered serious harm from the authorities, their paramilitary groups or any other group or individual in the past and on the available evidence, the Tribunal does not accept that there is a real chance that he will suffer serious harm in the reasonably foreseeable future.

[363]    Under s.91R(1)(b) of the Act, a non-exhaustive list of the type and level of harm that will meet the serious harm test is provided. The Tribunal is not satisfied that the claims of persecution for reasons of his ethnicity or race referred to by the applicant meet the serious harm test as set out in the non-exhaustive list in s.91R(2). The Tribunal is not satisfied therefore that the applicant will face a real chance of serious harm for reasons of his ethnicity or race were he to return to Sri Lanka.

[364]    The Tribunal has considered the applicant’s claim that he will be persecuted because he is a failed returnee asylum seeker, a failed returnee asylum seeker from a Western country/Australia and will be imprisoned, tortured or killed on return. It also considered the proposition that Tamils residing in a Western country and who returned to Sri Lanka will attract hatred and revenge from the Singhalese; and that as a result of returning, he will be perceived as a supporter of LTTE and/or imputed with a political opinion in opposition to the government. The Tribunal has considered the applicant’s claim that he has previously come to the attention of the authorities and this will exacerbate the risk of harm which he faces.

[365]    In relation to returnees, the human rights organisations Freedom from Torture, Amnesty International and Human Rights Watch have documented cases where returnees with an actual or perceived link to the LTTE have been tortured and detained and also that this is reported of some who have been political activists or human rights workers. For example the Human Rights Watch Report of February 2013 refers to rape and other forms of sexual violence being used against suspected members or supporters of the LTTE. The Director of Human Rights Watch is quoted as saying that every Tamil man or woman arrested for suspected LTTE involvement is at risk. Human Rights Watch and the other reports do not suggest that all Tamils are at risk. Freedom from Torture in their report document 24 cases of Tamil returnees from the UK with a real or perceived LTTE connection. While some news reports and actions of the Sri Lankan authorities indicate that the authorities are interested in returnees as possible LTTE supporters, the Tribunal finds the evidence does not indicate that they are taking action against every returnee as an LTTE supporter.

THE FEDERAL CIRCUIT COURT’S DECISION

10    The judicial review application made to the Federal Circuit Court was listed for a hearing on 13 February 2018. On 30 January 2018, written submissions were filed by the lawyers then representing the appellant: J[11]. Those submissions contained one ground of review which the primary judge set out in full at J[12]:

Ground 4

The Tribunal committed jurisdictional error by making a finding that was irrational and illogical, one that no reasonable decision maker would make.

PARTICULARS

a.    The Tribunal erred in rejecting a core claim advanced by the applicant by placing undue weight on his entry interview.

b.    In his statement of claims, noted in the Tribunal’s decision at [49], the applicant claimed that he obtained the clearance from his sister’s friend.

c.    During the delegate’s interview, at [74], the applicant claimed that he obtained clearance to travel between Jaffna and Colombo from a member of the EPDP.

d.    During the second hearing before the RRT on 23 September 2013, the applicant claimed that, although he was not a member of the EPDP, he was helped by a friend of his sister who was a member of the EPDP.

e.    The Tribunal rejected the applicant’s claim at [346], stating that it did not accept as plausible that the applicant “would have failed to mention this earlier in the entry interview or his statement of claims”.

f.    In making the finding above, the Tribunal placed undue weight on the applicant’s entry interview.

g.    The Tribunal in making credibility findings adverse to the applicant approached the task in an unduly particularised manner and allowed allegedly unfavourable omissions and inconsistencies, such as the one particularised above, to sequentially influence other factual findings.

h.    The failure to mention the connection with the EPDP in the initial interview was pivotal to the unfavourable credibility findings against the applicant. Although many alleged inconsistencies and omissions are mentioned in the case, the EPDP factor was pivotal. The intensive and overly rigorous approach of the Tribunal failed to take into account the numerous times the applicant was asked to state his claims (including an original RRT hearing, first AAT hearing and a second AAT hearing). The methodology and the findings of the decision under review offend the accepted principles.

11    At the conclusion of the hearing on 13 February 2018, the primary judge made orders which included that:

(1)    the applicant file and serve within 7 days an amended application giving full particulars of the grounds raised in his outline of submissions filed on 30 January 2018;

(2)    the applicant file and serve within 7 days each country report relied upon in support of the ground in the amended application;

(3)    the first respondent file and serve within 21 days written submissions in respect of that part of the amended application not dealing with the Tribunal’s finding of credit in respect of the applicant, such submissions are also to indicate any objections to the country reports relied upon by the applicant;

(4)    the applicant file and serve within 28 days any written submissions in response to the first respondent’s further written submissions;

(5)    the costs of the amendment are reserved;

(6)    the matter be determined on the papers without a further hearing except with respect to the question of costs.

12    On 20 February 2018, the appellant filed a further amended application in accordance with order 1 referred to above. However, only the first ground reflected what was raised in the January submissions: J[15]. Grounds 2 and 3 had not been raised and leave was not granted to raise them.

13    The primary judge concluded that, as no reference had been made in the further amended application to the particulars advanced in written submissions which attacked the credibility findings made by the Tribunal, that part of the ground of review had been abandoned. Nevertheless, the primary judge went on to explain that, if it had been pressed, he would have rejected it: J[17]. His Honour explained why at J[17]:

Even if that part of the ground had not been abandoned, I would have rejected it. It relies on the contention that reliance by the Tribunal on what is and is not said by an applicant at an interview shortly after arriving in Australia is legally unreasonable in light of the decision of the Full Court of the Federal Court in MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 at [56]. That decision is not authority for such a broadly stated proposition. Unreasonableness is to be judged by reference to all of the circumstances. Here, the Tribunal did have regard to the applicant’s failure to make a particular claim at his entry interview, but it had regard to the Court’s comments in MZZJO and also relied on the applicant’s failure to make the claim in his statement prepared for the purpose of his visa application. There was no unreasonableness as alleged.

14    His Honour set out the first ground in the further amended application, which “roughly equated” with the second part of the single ground raised in the January submissions. His Honour noted that the complaint focussed on T[365] of the Tribunal’s reasons and, in particular, the statement that “Human Rights Watch and the other reports do not suggest that all Tamils are at risk”: J[18]. The applicant had identified this finding as a necessary step in the Tribunal’s conclusion that the applicant did not face a real chance of serious harm on return to Sri Lanka. The primary judge set out in full the particulars or propositions advanced in the further amended application said to support the conclusion that the Tribunal’s finding was not reasonably open on the material. They were (without alteration or correction for errors and with footnotes omitted):

(a)    the UNHCR identifies persons suspected of certain links with the LTTE as being a category of persons at elevated risk of harm. Real or perceived links

“go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case”.

(b)    the UNHCR conclude further that “there is an ethnic element to persecution: Within each of the risk profiles described, there is an ethnic dimension to their vulnerability.” ... and... “...generally members of the minority Tamil ... are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances ... In addition to a person’s ethnicity, the place of origin may also be a relevant assessment in the assessment of risk. ”

(c)    The US State Department on Human Rights Practices in Sri Lanka for 2013 states,

    “Discrimination against persons with disabilities and against the ethnic Tamil minority continued, and a disproportionate number of the victims of human rights violations were Tamils.” ...

(d)    the UK Upper Tribunal 2013 (UK Tribunal) stated that among the categories of persons at real risk of persecution or serious harm on returning to Sri Lanka are those individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka because they are, or are perceived to have, a significant role in relation to post conflict Tamil separatism.

    The UK Tribunal states further that,

    “If a person is detained by Sri Lankan security services there remains a real risk of ill treatment or harm requiring international protection”.

(e)    The DFAT 2014 report states, inter alia, that:

(i)    while the Sri Lankan Constitution provides that no citizen shall be discriminated against on grounds of among other grounds race, place of birth or any other ground:

    “ ... ethnicity is highly politicised in Sri Lanka ... ”

(ii)    “there were likely instances of discrimination in the application of [the Emergency Laws] with LTTE support at times imputed on the basis of ethnicity. ”

(f)    The Tribunal further referred to the Amnesty International 2012 Annual Report 2012 (Amnesty Report) which alleges that “the ill treatment of people detained on suspicion of being LTTE sympathisers remains widespread ... ”. Further, the Tribunal notes in the same paragraph from the Freedom House that:

“there has been no decline in the in the use of torture against LTTE suspects over the last two years” and “In addition there has been a sharp increase in the “kidnapping of Tamils””.

(g)    The DFAT 2015 report found, in concluding why more Tamil’s were detained under Emergency Regulations than any other ethnic group, was due to:

“likely instances of discrimination in the application of these laws with LTTE support at times imputed on the basis of ethnicity.”

(h)    The Canadian Board found, in discussing the “screening” of possible LITE supporters by the authorities, that, inter alia,

“Tamils throughout the country, particularly young Tamil men in the north or east, are being arrested and detained on suspicion of LTTE affiliation, a practice [described] as akin to ethnic or racial profiling. ”

(i)    At CB page 653, paragraph 365, the Tribunal refers to the Human Rights Watch Report (HRW Report) of February 2013.

   (i)    The Tribunal note’s HRW’s Director’s comments that

Every Tamil man or woman arrested for suspected LTTE involvement is at risk.”;

(ii)    The Tribunal concludes that this statement “and the other reports” do not suggest that all Tamils are at risk (see paragraph 365);

(iii)    The HRW Report further states, at page 36, that in the immediate aftermath of the conflict in 2009,

    “LTTE members and civilians who had been under LTTE control were processed at screening sites and camps for internally displaced persons (IDPs).”

(iv)    The Tribunal erroneously concludes that the HRW Report does not suggest all Tamils are at risk and alleges the HRW Report’s findings are limited to those Tamils with suspected LTTE involvement. The reference to ‘Civilians’ above is a distinct reference to others who are not LTTE members.

15    At J[19], the primary judge referred to the applicant’s further written submissions which had been filed on 12 March 2018. The applicant had submitted that the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012 is to the effect that “irrespective of prior residency, Tamils are perceived generally with having LTTE association”. He also submitted that, contrary to the Tribunal’s conclusion, the report did not conclude that only those with a perceived link to the LTTE are at risk but, rather, that Tamils are discriminated against irrespective of any real or perceived link to the LTTE. The applicant submitted it was unreasonable for the Tribunal to conclude that the applicant would not be discriminated against as a Tamil: J[20].

16    At J [22], the primary judge rejected that ground. First, his Honour noted that the applicant was incorrect in submitting that the Tribunal had found that the applicant would not be discriminated against. Rather the critical finding was that there was not a real chance that the applicant would face serious harm in the reasonably foreseeable future for a number of reasons, including his Tamil ethnicity: J[23]. His Honour referred to T[361] and T[359] of the Tribunal decision, set out above.

17    Secondly, the primary judge noted that the Tribunal was not addressing what might have happened to the applicant immediately after the war or at some other time in the past; rather, it was assessing what might happen in the future: J[24]. His Honour concluded that, whilst there was material before the Tribunal which related to the period shortly after the end of the civil war in 2009, the Tribunal “was correct to consider more recent information as more accurately addressing the question it had to decide”.

18    His Honour’s third reason for rejecting the ground was that it was open to the Tribunal for it to conclude on the material before it that not all Tamils were at risk of persecution: J[25]. His Honour carefully considered the material and the submissions which had been made to him stating:

[25]    Thirdly, in any event, it was open to the Tribunal to conclude from the material before it that not all Tamils were at risk of persecution. The UNHCR Guidelines relied on by the Tribunal (see [406]) stated that the following groups may still be at risk in Sri Lanka:

…

 (i)    persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);

   (ii)    certain opposition politicians and political activists;

   (iii)    certain journalists and other media professionals;

   (iv)    certain human rights activists;

 (v)    certain witnesses of human rights violations and victims or human rights violations seeking justice;

 (vi)    women in certain circumstances;

 (vii)    children in certain circumstances; and

 (viii)    lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.

[26]    Clearly enough, only the first of these groups could have applied to the applicant. It is also plain that the Tribunal was correct to identify, at [362], that the Guidelines “do not identify Tamils or Sri Lankan Tamils as one of the risk profiles in need of protection”.

[27]    The UNHCR Guidelines considered by the Tribunal (at [409]) also addressed the first of the risk profiles referred to above. I have inserted numbers in the paragraph so that later reference to the findings is more easily understood:

409.    ... [1] persons suspected of certain links with the LTTE may be and in some cases are likely to be in need of international [protection]. ... [2] originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the Refugees Convention. [3] However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continues to expose individuals to treatment which may give rise to a need for international protection, depending on the specifics of the individual case. [4] The nature of these more elaborate links to the LTTE can vary, ... can include former LTTE cadres, members, supporters (supplying goods or transport, shelter etc) and persons with family or other close links to the LTTE . ...

[5] Within each of the risk profiles described, there is an ethnic dimension to their vulnerability. …

(Emphasis added)

[28]    Contrary to the applicant’s submission, these Guidelines do not state that Tamils are generally perceived as having LTTE association irrespective of their prior residency. To the contrary, as finding [2] and [3] at [27] above show, the Guidelines suggest that prior residency in an area formerly controlled by the LTTE does not, by itself, result in the need for protection.

[29]    The information from the UK Tribunal addressed the circumstances of people who are detained by security services. As such, it did nothing to undermine the Tribunal’s assessment of the applicant’s situation because the risk of harm, including detention and subsequent mistreatment, on the Tribunal’s findings, arose from actual or perceived connections to the LTTE and the Tribunal found that the applicant had neither type of connection.

[30]    The extracts from the DFAT reports of 2014 and 2015 relied on by the applicant dealt with discrimination in the application of the Emergency laws; however, the 2015 report (which was not extracted in the Court book, but which was before the Court) reveals that this information referred to the period of the civil war: see [3.10]. That was not necessarily relevant to the Tribunal’s decision. As I have observed at [24], the Tribunal accepted that there was an appreciable risk of harm during the war, but that the security situation had stabilised: [361].

[31]    The extracts from the Amnesty International report relied on by the applicant concerns people suspected of LTTE links and so was not relevant to the applicant.

[32]    The Canadian Board report relied on by the applicant, again concerned the treatment of people suspected of LTTE links.

[33]    The HRW report related to the plight of people arrested for suspicion of LTTE involvement, and those who, in the immediate aftermath of the civil war, were processed at screening camps because they had lived in areas that had been controlled by the LTTE. The first aspect did not relate to the applicant and the second concerned a different time.

[34]    In summary, nothing in the material relied on by the applicant supports his argument. Given the direct relevance of the UNHCR Guidelines, and the nature of the other material, it was open to the Tribunal to conclude, first, that the applicant would not be perceived to have any links to the LTTE and, secondly, that he was not at real risk of persecution simply by reason of his ethnicity.

GRound of appeal

19    The notice of appeal filed on 5 June 2018 contained a single ground of appeal:

The Judge in the FCC his Honour committed legal errors when dismissing proceedings. The Judge failed to consider all of the arguments and grounds raised in a proper and reasonable manner. I was denied procedural fairness.

20    The appellant did not file written submissions. The appellant did not, in oral submissions, identify any specific legal error on the part of the primary judge. This is understandable having regard to the appellant’s lack of legal training. Having reviewed both the decision of the Tribunal and the decision of the Federal Circuit Court, I was unable to identify an error in the reasoning of the Federal Circuit Court.

21    The primary judge dealt with the whole of Ground 1, including the part which he considered had been abandoned. The only arguments or grounds which it is shown the primary judge did not deal with were Grounds 2 and 3 in the further amended application. The applicant had not been granted leave to raise those grounds. They were:

2.    The Tribunal failed to give any reason for the decision it reached to prefer evidence that the applicant:

(a)    would not be perceived as anti-government or supportive of the LTTE because of his being a young male Tamil returnee asylum seeker [CB pg 652, para 359];

(b)    does not face a real chance of serious harm on the basis of imputed political opinion as a LTTE supporter [CB pg 652, para 361]

(c)    will not suffer persecution because of his race as a Tamil [CB pg 652, para 361]

3.     The Tribunal erred in law and in fact in failing to observe procedures required by the Act requiring the Tribunal to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

Particulars

   (a)    The Applicant alleged he had a well-founded fear of persecution;

(b)    the Tribunal was presented with country information from various sources and of various dates, detailing the persecution of Tamils, the reason for the Applicant’s fear of persecution,

(c)    the Tribunal failed to provide reasons for its reliance on those Reports contradicting the Applicants fear of persecution;

(d)    the Tribunal failed to provide any reasons for rejecting the remaining country information.

22    After filing the further amended application on 20 February 2018 and his written submissions on 12 March 2018, the appellant – who was then represented by a lawyer experienced in this area – did not make any application to reopen the hearing before the primary judge or seek leave to raise new grounds after the hearing had concluded. The primary judge is not shown to have erred in failing to consider the grounds which the applicant did not have leave to raise.

23    The appellant did not seek leave to rely on Grounds 2 and 3 as new grounds in the appeal – cf: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599. Nevertheless, recognising the difficult circumstances in which the appellant finds himself, I have considered whether these grounds show jurisdictional error on the part of the Tribunal. If they had, I would have been inclined to grant leave subject to considering the Minister’s position. However, for the reasons which follow, I would not grant leave because the grounds have insufficient prospect of succeeding.

24    Ground 2 revolves around three conclusions said to be found in T[359] to T[361]. It was said that the Tribunal did not express reasons for reaching those three conclusions. That complaint is not made out. From T[7] to T[336], the Tribunal carefully and thoroughly set out its consideration of the applicant’s claims and evidence. The Tribunal made extensive findings and set out reasons for them from T[337] to T[382]. None of those are challenged. Each of them was open on the evidence referred to by the Tribunal.

25    The Tribunal accepted that the applicant was a Tamil born in Batticaloa in the Eastern Province in November 1991 and that he left Sri Lanka for India in December 2007 where he remained until departing for Australia by boat in May 2012. The Tribunal rejected a number of claims, stating at T[343]:

Apart from these claims, the Tribunal does not accept the applicant’s account of what happened to him and his family in Sri Lanka and the reasons why he departed in December 2007; claimed events in India and subsequent claimed events in Sri Lanka. The Tribunal rejects the following claims:

 i.    His brother-in-law was shot by the army in 1988.

ii.    He was suspected, interrogated or falsely accused in relation to the death of a senior Singhalese police officer during riots in 2005, because he was an auto-rickshaw driver or for any other reason.

iii.    A colleague auto-rickshaw driver, and neighbour living two doors away, was killed in January 2006.

vi.    One of his distant relatives with a similar name was abducted and killed because they believed he was involved in the riots in the killing of the police officer.

v.    The army came to his shop in 2006, beat his friend who was looking after the shop, and confiscated bicycles and tools. All the stock was confiscated. The army was blaming auto rickshaw drivers for a nearby bomb blast.

vi.    One month later, he closed his bicycle repair business and worked as a driver from home for people that he knew because of fears of persecution from the Sri Lankan security forces. He operated the driving business in limited areas, could not drive freely, but drove it for urgent reasons and for people from the North, and only for short distances and not in areas where there was a military presence.

vii.    The army came to ask him why he closed his shop because he was a suspect in the explosion. He claimed that his lease was broken, which is why he closed the shop.

viii.    He was working from home but if he heard a dog bark, left home because he feared that the security forces would come to find him.

ix.    A distant relative was abducted by people from the army in a white van. He was also an auto-rickshaw driver. The day before he was shot and killed, this person told the applicant the army had come to his house asking for directions. After this, others were killed including a Hindu priest and his friend.

x.    A relative with a similar name and of the same age was caught and beaten and through this mistaken identity, found that the army was searching for him. He was told to complain to the Human Rights Commission and surrender to their camp for safety but he did not do so as there was no safety because it was an army controlled area.

xi.    He was wanted by the army between January 2007 and December 2007 and they came to his house on three occasions but his mother spoke with them.

xii.    In order to avoid the security forces, he used to stay in the homes of relatives and did not stay at home during the night.

xiii.    He obtained a pass and travelled to Colombo from Jaffna through the assistance of his sister who knew someone in the EPDP.

xiv.    He obtained a passport through the assistance of an influential person equivalent to an agent.

xv.    He was interrogated by officers of the Indian intelligence organisation, Q Branch, as to whether he was part of the LTTE, if he went out and they wanted to know where he was going.

xvi.    He left India because of problems with the Indian intelligence organisation, Q Branch.

xvii.    He did not have any rights in India.

xviii.    In 2012, his brother telephoned him and said that the LTTE had come to his house.

xix.    His passport was given to a friend for safe keeping, rather than a close family member, and he no longer has access to the passport.

xx.     His brother-in-law’s brother was a former member of TELO who was shot and killed in March 2015.

xxi.    The applicant will be suspected of having links to the LTTE because he left Sri Lanka in December 2007 and resided in India until April 2012; his travel to Australia rather than returning to Sri Lanka; or for any other claimed reason.

26    At T[344], the Tribunal recorded its conclusion that the applicant had been vague, inconsistent and evasive. The Tribunal proceeded to consider other aspects of the appellant’s claims and rejected those for the reasons it identified from T[345].

27    The conclusions of the Tribunal at T[359], T[360] and T[361] being the paragraphs of the Tribunal’s reasons to which paragraphs (a) to (c) of Ground 2 refer, were open on the material before the Tribunal (including for the reasons given by the Federal Circuit Court). The Tribunal’s reasons for its conclusions in those paragraphs were in summary that, when those parts of the applicant’s claims as were accepted were assessed against the country information before the Tribunal, it did not consider the applicant would be perceived as anti-government or supportive of the LTTE, or that he faced a real chance of serious harm on the basis of an imputed political opinion as an LTTE supporter or that he would suffer persecution because of his race as a Tamil. The Tribunal’s reasons were sufficient .

28    As to Ground 3, the appellant did not identify any information which should have been put to him but which was not put to him. During the lengthy course of the second Tribunal hearing, the appellant was invited in writing twice to provide comment, once in relation to certain country information and once on a series of matters going to credibility. He was afforded oral hearings. The proceedings before the Tribunal appear to have been conducted in an entirely orthodox manner. The appellant was represented before the Tribunal as well as before the Federal Circuit Court. The appellant has not shown that the Tribunal failed to observe proper procedures.

29    The Tribunal had before it various pieces of country information. It was a matter for the Tribunal to decide which pieces of country information it accepted and which it did not and how much weight to ascribe to the various pieces of country information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] and CSJ15 v Minister for Immigration and Border Protection [2017] FCA 1463 at [40]. That does not mean that the Tribunal can never be shown to have erred in the manner in which it dealt with the country information, but the appellant has not identified a use of, or a failure to use, country information in a manner which establishes jurisdictional error. The appellant’s real complaint appears rather to be that he would have preferred the Tribunal to have reached a different conclusion from the country information.

30    As to the complaint that the Tribunal failed to provide reasons for accepting and rejecting country information, this complaint is not made out. The Tribunal identified the country information upon which it relied and identified the conclusions it drew from that country information.

31    Particulars (c) and (d) of ground 3 are expressed as a failure to provide reasons for accepting certain evidence contained in country information and not accepting other evidence contained in country information.

32    The Tribunal’s statutory obligation to provide reasons is contained in s 430(1) of the Migration Act 1958 (Cth). That section includes:

Written statement of decision

(1)      Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

   (a)      sets out the decision of the Tribunal on the review; and

   (b)      sets out the reasons for the decision; and

   (c)      sets out the findings on any material questions of fact; and

(d)      refers to the evidence or any other material on which the findings of fact were based; and

   (e)    …

   (f)      records the day and time the statement is made.

33    Section 25D of the Acts Interpretation Act 1901 (Cth) provides:

Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

34    The Tribunal’s reasons comply with these requirements. The appellant did not identify which pieces of country information he says were rejected which ought to have been the subject of an obligation to provide reasons; nor did he identify why there was an obligation to provide reasons in the particular circumstances. The appellant did not identify why the country information accepted by the Tribunal ought to have been accompanied by an explanation as to why it was accepted.

35    Having regard to the appellant’s circumstances, I have sought to identify whether the complaint can properly be made out by reviewing the Tribunal’s decision. The Tribunal did not so much reject any specific item of material country information as prefer more recent country information in relation to the question whether there was a real chance that the applicant would face serious harm in the reasonably foreseeable future for the reasons he was advancing. This was a logical conclusion. The country information indicated that immediately after the civil war in 2009 the situation was, in some respects, different to the situation in later years. The country information dealing with earlier years was not rejected, but seen as being of less relevance to the question the Tribunal was addressing.

36     The Tribunal expressed its reasons in a manner which enabled the parties to understand what conclusions the Tribunal drew from the country information. The reasons as a whole were sufficient to explain how and why the ultimate decision was reached. Indeed, the reasons were extremely thorough. The Tribunal expressed its reasons in a detailed way and sufficiently to facilitate judicial review and subsequent appeal. The complaint is really one about the extent of the reasons provided on a particular topic: the acceptance and asserted rejection of country information. The Tribunal was not obliged to spell out every detail of its reasoning process on this issue. More specifically, there was no obligation on the Tribunal, at least in the circumstances of this case, to explain why it accepted the country information it did accept. It is relatively obvious why it did: it was country information from apparently credible sources; it was information which was detailed and considered; it was more proximate in time to earlier country information. There may be cases in which conflicting evidence in items of country information is so central to the “review” that a Tribunal does need to explain why it accepted one or rejected another. However, that was not shown to be the position in this case.

CONCLUSION

37    For those reasons the appeal is dismissed with costs.

Associate:

Dated:    15 February 2019