FEDERAL COURT OF AUSTRALIA

ACM15 v Minister for Home Affairs [2019] FCA 217

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 14 May 2017, which dismissed an application for judicial review of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 11 February 2015. The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse the appellant’s application for a Protection (Class XA) visa (protection visa). The Federal Circuit Court judgment has the citation ACM15 v Minister for Immigration & Anor [2018] FCCA 1194.

2    The appellant was not legally represented in this Court. He did not file any written submissions. The appellant appeared in person today. With the aid of an interpreter, he explained his position.

3    The Minister relied on written submissions dated 23 January 2019.

Background

4    The appellant is a citizen of Sri Lanka. He arrived in Australia on 16 July 2012 as an “unauthorised maritime arrival”, as defined in s 5AA of the Migration Act 1958 (Cth).

5    On 8 November 2012, the appellant applied for a protection visa. In a statutory declaration accompanying his application dated 26 October 2012 the appellant claimed to fear harm from Sri Lankan authorities because of his Tamil ethnicity and because he sought asylum in a Western country.

6    On 1 August 2013, a delegate of the Minister refused the appellant’s protection visa application. On 7 August 2013, the appellant applied to the Tribunal for review of the delegate’s decision.

7    The appellant was assisted by a registered migration agent in the Tribunal proceeding. His representative filed detailed written submissions dated 12 January 2015 in support of his claims. The appellant attended a hearing before the Tribunal on 14 January 2015, which was conducted with the assistance of an interpreter. By a letter dated 3 February 2015, further written submissions were made on his behalf, which, among other things, provided additional country information.

8    On 11 February 2015, the Tribunal affirmed the delegate’s decision.

Tribunal’s decision

9    Relevantly for the present appeal, the Tribunal considered the appellant’s claims relating to his complaints to police under the following subheadings:

    “Is there a real chance that the [appellant] would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future because of his imputed political opinion because he complained about army and police men taking goods from his shop?”; and

    “Is there a real chance that the [appellant] would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future because of his imputed political opinion because he complained about a policeman fining a man on a motorbike?”

10    Under the first subheading, the Tribunal set out the appellant’s claims regarding his complaints about Army personnel and police taking goods from his shop without paying. The Tribunal also noted that:

[54]    The [appellant] said that if he went back to Sri Lanka he could not stand by and watch the police behave as they do. He said the Government and the Army and the police would find out and he would have no protection.

It is convenient to note that [54] is identical to [74] (extracted below) and also [10] of the Tribunal’s reasons. It is unclear why the Tribunal repeated itself in these paragraphs.

11    The Tribunal went on to make findings, including that:

[68]    I did not find the [appellant] credible when he was asked why he thought he would be harmed because of this incident and his subsequent joint approach with other shopkeepers. …

[69]    I accept that the [appellant] owned a shop in his village. I accept that from time to time Army personnel would come to his shop and the shops owned by others and take goods without paying. I accept that the shopkeepers involved, including the [appellant], approached the local police. I accept that following that approach the problem stopped for a few months.

[70]    I accept that the [appellant], together with other shopkeepers, had also complained to their Member of Parliament. I accept that nothing adverse happened to the [appellant] because of his part in the joint approach to the police and to the Member of Parliament before the [appellant] left Sri Lanka. I accept that the other shopkeepers did not suffer any harm as a result of the joint complaint they made to the Police.

…

[72]    I find that there is not a real chance that the [appellant] would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future because of his imputed political opinion because he complained about Army and Police men taking goods from his shop, and I find that his fear is not well-founded.

12    Under the second subheading, the Tribunal outlined the nature of the appellant’s claims relating to his complaint about a policeman fining a man on a motorbike, and again noted that:

[74]    The [appellant] said that if he went back to Sri Lanka he could not stand by and watch the police behave as they do. He said the Government and the Army and the police would find out and he would have no protection.

13    The Tribunal found that “it is plausible that the [appellant] might have intervened when he saw the confrontation between a policeman and a motorbike rider over a fine”. The Tribunal did not accept, however, the appellant’s account of the events that took place thereafter. The Tribunal stated:

[81]    I do not accept as credible the [appellant’s] account of the claimed subsequent events. The [appellant] has claimed that the same policeman, accompanied by three other men, stopped their white van and that the policeman was angry because the [appellant] had complained about him to a senior policeman. I note that when questioned at the hearing the [appellant] said that the only person he had complained to was the policeman himself. …

[82]    I do not accept that the [appellant] had the encounter after the initial incident as claimed.

[83]    I do not accept as credible the claim that people, possibly the same people, came looking for him after he left Sri Lanka.

14    The Tribunal found that:

[84]    … there is not a real chance that the [appellant] would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future because of his imputed political opinion because he complained about a policeman fining a man on a motorbike, and … his fear is not well-founded.

15    The Tribunal concluded that, having considered the appellant’s claims both separately and cumulatively, it did not accept that he faced a real chance of suffering serious harm in Sri Lanka now or in the reasonably foreseeable future for any Convention reason. The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention and therefore found that the appellant did not satisfy the criterion in s 36(2)(a) of the Migration Act. The Tribunal was also not satisfied that there was a real risk that the appellant would suffer significant harm as defined in s 36(2A) of the Migration Act, and concluded that he did not satisfy the complementary protection criterion in s 36(2)(aa).

Federal Circuit Court proceeding

16    On 5 March 2015, the appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court. By an amended application dated 22 August 2017, the appellant raised three grounds of review. He abandoned grounds 2 and 3 at the hearing.

17    Ground 1, the only ground ultimately pressed before the primary judge, is much the same as the single ground of appeal advanced in the current proceeding. By this ground the appellant alleged that:

1.    In assessing the Applicant’s future risk of serious or significant harm for the reasons of his imputed political opinion, the Second Respondent failed to take into account relevant considerations or applied the wrong legal test.

18    The particulars to ground 1 stated that, despite accepting that the appellant had made complaints about police in the past and recognising that the appellant stated that he would continue to do so in the future, the Tribunal failed to make a finding as to whether, if returned to Sri Lanka, the appellant would face harm if he continued to make complaints regarding police behaviour in the future.

19    As already indicated, the primary judge dismissed the appellant’s judicial review application on the basis that the Tribunal had not failed to address a requisite matter, as alleged.

Proceeding in this Court

20    By a notice of appeal filed on 25 May 2018, the appellant raised one ground of appeal in the following terms:

1.    In assessing the Applicant’s future risk of serious or significant harm for the reasons of his imputed political opinion, the Second Respondent failed to take into account relevant considerations or applied the wrong legal test.

a)    The Second Respondent accepted that the Applicant had made complaints about police in the past and noted that the Applicant stated he would continue to do so in the future.

b)    The Second Respondent did not make a finding as to whether the Applicant would face harm if he continued to make complaints about police in the future.

c)    In concluding that there is not a real chance that the Applicant would suffer serious or significant harm in Sri Lanka now or in the reasonably foreseeable future for reasons of his imputed political opinion, the Second Respondent considered only past events and behaviours and failed to consider that the Applicant, if returned to Sri Lanka, would continue to make complaints regarding police behaviour.

Parties’ submissions

21    At the hearing the appellant made four submissions. First, he submitted that the problems in Sri Lanka for Tamils had not ended. Second, he referred to two letters from Ministers of Parliament which he said he had wished to provide to the Tribunal. As one was rejected, he did not attempt to provide the second letter. Third, he said he had a lot of photographs and other evidence that supported his claims. Lastly, he reiterated that if he were returned to Sri Lanka, his life would be in danger. He did not otherwise address his ground of appeal.

22    The Minister addressed the ground of appeal in written submissions. Citing the Full Court’s decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55] and [58], the Minister submitted that the Tribunal had considered the appellant’s claims, and that the matter to which the appellant referred in his notice of appeal did not constitute a separate claim the Tribunal was required to consider.

23    The Minister referred to the appellant’s statement, recorded in the Tribunal’s reasons at [54] and [74], that “if he went back to Sri Lanka he could not stand by and watch the police behave as they do”. The Minister contended that it was far from clear what the appellant meant when he said that he would be unable to “stand by and watch”. Nor was it clear what he meant by referring to police behaving “as they do”. The Minister submitted that the Tribunal was not required to speculate or make the appellant’s case for him to compensate for these deficiencies. The Minister further submitted that, notwithstanding the lack of clarity with respect to these matters, the Tribunal did in fact address the prospect of the appellant being harmed in the future in finding that the appellant would not face persecution in the reasonably foreseeable future on account of his political opinion.

24    In the alternative, the Minister submitted that the appellant’s allegation that he would face harm in the future because he would be unable to “stand by and watch the police behave as they do”, was clearly related to his primary claim that he had been persecuted in the past for making complaints about the police. The Minister emphasised that Tribunal had found at [81]-[83] that the appellant had not been harmed as he had alleged. Referring to the Full Court’s decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47], the Minister submitted that the Tribunal was not required to make a finding on the specific matter in question, as the claim had effectively been dealt with when the Tribunal found that the appellant had not in fact been harmed following his previous complaints about police conduct.

Consideration

25    It is first appropriate to address the issue raised in the appellant’s notice of appeal.

26    The Tribunal was obliged to deal with any claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review: see NABE at [63]. In NABE Black CJ, French and Selway JJ described the nature of the Tribunal’s obligation to consider claims in the following terms at [55] and [58]:

... Where the Tribunal fails to make a finding on “... a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction ... .

…

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it. ... There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated ... . It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has as statutory duty to consider it. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

27    At [60] the Full Court further observed:

In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that “[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made” (at [16]). Selway J however went on to observe in SGBB (at [17]):

But this does not mean the application is to be treated as an exercise in 19th Century pleading.

His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:

The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.

His Honour, in our view, correctly stated the position when he said (at [18]):

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

28    It is apparent from the Tribunal’s reasons that it accepted that the appellant had made complaints about police in the past. In particular, the Tribunal:

    accepted that Army personnel would come to the appellant’s and other shops and take goods without paying, and that “the shopkeepers involved, including the [appellant], approached the local police” (at [69]);

    accepted that “the [appellant], together with other shopkeepers, had also complained to their Member of Parliament.” The Tribunal went on to state “that nothing adverse happened to the [appellant] because of his part in the joint approach to the police and to the Member of Parliament”, and that “the other shopkeepers did not suffer any harm as a result of the joint complaint they made to the Police” (at [70]);

    acknowledged that the appellant had “complained about Army and Police men taking goods from his shop” (at [72]); and

    accepted “that it is plausible” that the appellant may have intervened in the confrontation between a policeman and a motorbike rider over a fine (at [80]). In this regard, the Tribunal apparently accepted that the appellant complained to the policeman himself. It is clear, however, that the Tribunal did not accept as credible the appellant’s account of subsequent events, including that the policeman later approached the appellant in a van because he was angry that the appellant had complained about him to a senior policeman (see at [81]).

29    The appellant’s sole ground of appeal is, in essence, that although the Tribunal had accepted that he had made complaints to the police in the past, it failed to deal with his claim that, if returned to Sri Lanka, he would face a risk of harm by reason of his imputed political opinion because he would continue to make complaints about the police in the future.

30    Reference to the Tribunal’s reasons do not disclose an adequate foundation for this ground. The appellant has not referred to any other material before the Tribunal that might have provided some further or better foundation, and I have been unable to discern any.

31    To the extent that the appellant referred to the possibility of making future complaints about police, his supposed claim was recorded by the Tribunal at [10], [54] and [74] of its reasons in the following terms:

The [appellant] said that if he went back to Sri Lanka he could not stand by and watch the police behave as they do. He said the Government and the Army and the police would find out and he would have no protection.

32    To construe the appellant’s statement that he would not to “stand by” and watch the police behave “as they do” as a statement that he would continue to complain about the police if returned to Sri Lanka does not advance the appellant’s case a great deal. This statement was so very general that it could not amount to a “claim” that the Tribunal was obliged to consider. To construct such a claim out of this statement would have involved the Tribunal in a degree of creative activity that it was not obliged to undertake: compare NABE at [58].

33    In any event, this supposed claim has the same factual bases as the appellant’s primary claim regarding his past complaints about police and Army personnel, and the Tribunal rejected his primary claim. In Applicant WAEE at [47], the Full Court held:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  …

34    It was unnecessary to make a separate finding about the supposed claim because the factual premise on which it rested had been rejected. The Tribunal did not accept that the appellant had been harmed in consequence of past complaints about police conduct. In particular:

    the Tribunal did not find the appellant credible when asked about why he thought he would be harmed because of his complaint about Army and policemen taking goods from his shop and his subsequent joint approach with other shopkeepers (at [68]);

    the Tribunal found that nothing adverse happened to the appellant because of his part in the joint approach to the police and to the Member of Parliament before he left Sri Lanka, and that the other shopkeepers did not suffer any harm as a result of the joint complaint to the police (at [70]); and

    the Tribunal found that the appellant’s account of the events allegedly occurring after he intervened in the confrontation between a policeman and a man on a motorbike was not credible, and that the appellant had not been harmed as he had alleged (at [81]-[83]).

35    In the present case, the Tribunal effectively dealt with the appellant’s claim, if it be so characterised, that he would face harm if he continued to make complaints about police behaviour of the kind he had made in the past, when it rejected the appellant’s claims regarding his past complaints. In this circumstance, the Tribunal was not required to make a further finding about the same sort of events if they occurred in the future. No relevant error is disclosed in the judgment of the primary judge.

36    In relation to the matters raised by the appellant today, it is appropriate first to deal with the letter issue. The Court directed the appellant’s attention to [56] of the Tribunal’s reasons. The appellant confirmed that the letter from a Member of Parliament dated 20 August 2013 referred to in that paragraph was in fact the letter he had provided to the Tribunal. As I observed to the appellant, it would seem from this paragraph and attendant paragraphs that the Tribunal in fact considered the letter.

37    The other submissions raise matters going to whether the Tribunal made the correct decision in the appellant’s case and, ultimately, the appellant expressed his profound disagreement with the Tribunal’s decision. Those submissions cannot however support a finding of jurisdictional error on the part of the Tribunal or error on the part of the primary judge.

Disposition

38    For the foregoing reasons, the appellant’s appeal should be dismissed, with costs.

Associate:

Dated:    26 February 2019