FEDERAL COURT OF AUSTRALIA

ACA18 v Minister for Home Affairs [2019] FCA 241

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority): ACA18 v Minister for Home Affairs [2018] FCCA 2038 (ACA18). The Authority had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (Minister), to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

BACKGROUND

2    The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia by boat on 29 September 2012. He did not hold a visa that was in effect and was thus an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth) (Act).

3    In the record of the appellant’s Irregular Maritime Arrival Entry Interview the following is recorded in response to the question “[w]hy did you leave your country of nationality (country of residence)?”:

6B: During 2010 I tried to go to UK, a person helped me to get a (false - I didn’t know) passport, my visa was refused. They refused to return the money. I filed a case against the lady. Lady’s son was involved in EPDP. He threatened I had to stop the case. In the case they threatened me that if I don’t finish the case I will be finished. I changed the case into another person’s name. I gave power of attorney to that person and then got out of that place. They questioned me and told me again and again I have to go to the camp. I had another problem with the EPDP. I gave them 8 LAKHS and 65,000 RUPEES. I sent the letter to DIAC, in the letter every detail is there.

FROM ORIGINAL ARRIVAL INTERVIEW:

Faced danger from paramilitary groups after moving to new area from LTTE controlled group. Also because of court action I undertook to recover money paid for student visa, I was threatened to be killed.

4    On 6 August 2013 the appellant lodged an application for a Protection (Class XA) visa (PV Application). In support of the PV Application the appellant annexed a statement which relevantly included:

3.    I was born on 28 July 1984 in Killanochchi, Sri Lanka. It comes under Vanni area and was fully controlled by LTTE till 2008. My father was a nursing officer working at Mulankavil Govt hospital and used to provide medical help to LTTE

…

5.    My father worked at Mulankavil Govt hospital and l used to work at Batticloa. He used to visit me every month. In Nov 2007 (not sure of date) he rang me to inform that he was coming to see me. I waited for him but he did not come. During this time the LTTE had split into TMVP. I think he was involved with both LTTE and TMVP. I took leave from work to look for him. …

5    On 14 November 2015 the appellant was informed by the then Department of Immigration and Border Protection (Department) that his PV Application was invalid and was invited to lodge an application for either a Temporary Protection (subclass 785) visa or a SHEV.

6    On 10 November 2016 the appellant lodged his application for a SHEV. In a statement annexed to that application (SHEV Statement) the appellant said that he did not rely on any previous statements made to the Department and that he took “this opportunity to submit a fresh statement of my claims”. He made the following claims:

(1)    in 1999 he was living in Kilinochchi which at the time was under the control of the Liberation Tigers of Tamil Eelam (LTTE);

(2)    his father was working as a nurse at the Mulankavil Government Hospital and, during the course of his duties, treated many LTTE cadres who had been injured in fighting. His father also had several plots of land, some of which they farmed and others of which he rented to tenants;

(3)    LTTE officials came to his class at school and told the students to attend a meeting, which they did. At the meeting the students were told that the LTTE wanted them to join their organisation and if they did not wish to join they would still train with the LTTE. Training commenced on the weekends for about 5 to 6 hours. The appellant said that their group was divided into two groups, those who seemed to be in agreement with the LTTE and the others. The appellant was in the “others” group;

(4)    during training he injured himself and, as there were no medical facilities at the camp, his mother took him to Vavuniya Hospital in the Government territory where he stayed for about two weeks. Upon his discharge, the appellant did not want to return to the LTTE so he stayed with relatives in the Government territory;

(5)    in about January 2002 the relatives with whom the appellant was staying returned to Kilinochchi so the appellant rented a room in town and lived there alone while studying for his A levels;

(6)    two Tamil organisations aligned with the government and which both had paramilitary arms, the TELO and PLOTE, had offices near the appellant’s place of residence. The PLOTE approached the appellant to become a member on over 10 occasions while he was going to and from school and sometimes the TELO did so as well. The appellant said that on some of those occasions he was threatened with a gun. The appellant declined their approaches;

(7)    the appellant found the continual harassment to be very distressing and he felt intimidated and trapped by the PLOTE and the TELO in Vavuniya and the LTTE at his home. Towards the end of 2005 the appellant attempted suicide but was saved by a friend. After this he began to ask his friends if they knew of any jobs for him outside Vavuniya;

(8)    he commenced working as an accounting assistant at an NGO, the Organisation for Eelam Refugees Rehabilitation, in Batticaloa in the hope that he would be able to escape the attentions of the PLOTE and the TELO;

(9)    the appellant’s father began to visit him on a regular basis. In November 2007, after telling the appellant that he was coming to visit, his father did not appear as arranged. The following day, while the appellant was enquiring after his father, he was informed by a work colleague that men had come in a van to the appellant’s workplace and asked about his whereabouts. The appellant decided not to go back to his workplace. The next day he received an anonymous call on his mobile phone from a man who wanted to know where he was;

(10)    the appellant became concerned and decided to leave Sri Lanka. He felt that he would never be free of the paramilitary groups, PLOTE, TELO and TMVP, and was worried that his father’s disappearance was linked to his having treated LTTE cadres. The appellant left Sri Lanka for Singapore where he enrolled in a food and beverage service course and applied for a student visa;

(11)    from April 2009 he lost contact with his family and in August 2009 he returned to Sri Lanka and went to Vavuniya to locate them. After he located his family in a camp in Vavuniya, the appellant went to register, which he was required to do because he was not in a camp, and he was told that as he had been overseas he would have to report to the police and obtain a police clearance. Because of his father’s disappearance and his travel overseas, and given that he had heard that Tamils who travelled overseas were suspected of raising funds for the LTTE, the appellant feared he would attract suspicion if he reported to the police. Thus he decided to leave Sri Lanka and in early October 2009 once again travelled to Singapore;

(12)    in January 2010 the appellant returned to Sri Lanka because he could no longer obtain a visa to stay in Singapore. He was detained by CID at the airport and questioned for about two hours about why he left Sri Lanka, why he returned briefly and why he left again. The appellant returned to Vavuniya and in February 2010, while he was out, men came to his home looking for him and asking about his father’s whereabouts;

(13)    in March 2010 he contacted an agent in Colombo to discuss how to leave Sri Lanka. The appellant made arrangements to deposit in instalments the cost of obtaining a student visa, 10 lakh rupees, into the agent’s bank account. The appellant’s student visa application for the United Kingdom (UK) was refused in July 2010 and again in March 2011. After the refusals, the appellant tried to recover the money he had paid to the agent but she kept making excuses and delaying;

(14)    in January 2012 the appellant made a complaint about the agent to the Vavuniya police. The police informed the appellant that they thought there was a case and that they would go to Colombo to arrest her but that the appellant would have to accompany them. Approximately one month later the appellant paid for a van and food and went with the police to the agent’s house to arrest her and bring her back to Vavuniya to answer the charges. One of the agent’s sons accompanied her and they all returned to Vavuniya in the van that the appellant had hired. Upon their return the police took statements and the agent was kept on remand;

(15)    outside the police station the agent’s son told the appellant that he would give him money if he withdrew the case but the appellant refused. The appellant said that the agent’s son then threatened him;

(16)    the hearing was scheduled for two days later (in April 2012) and the agent’s other son came to Vavuniya for it. That son also threatened the appellant. He told the appellant that he was from the Eelam People’s Democratic Party (EPDP); that if he did not withdraw the case he would use his power to do anything he liked to him; and that “before this case is finished, I will have finished with you”. When the appellant went to the police to complain about the threats, he was informed by the police that he could not make a new case until the current one was finished. The appellant believed that the police had taken money from the agent and/or her sons;

(17)    in May 2012, while he was at his home in Kilinochchi, two men came on a motorbike and told him he had to attend the Army camp. He did so and while there was asked about his father’s kidnapping, why he was in Vavuniya and why he went to Singapore. He was accused of working for the LTTE and was threatened. The appellant was released after about one or two hours but was told that they had not finished with him and that he would have to return to the camp when told to do so;

(18)    in June 2012, while the court case against the agent continued, the agent’s son with connections to the EPDP telephoned the appellant and threatened him again. The appellant once again considered leaving Sri Lanka and signed a power of attorney in favour of the mother of one of his friends giving her power to act on his behalf in his proceeding against the agent. He then departed for Australia;

(19)    in August 2015 some men attended the appellant’s brother’s grocery shop in Kilinochchi. They asked where the appellant was, when he told them he did not know, they accused him of lying and a physical fight broke out, leading to the appellant’s brother being hurt and damage being caused to his store; and

(20)    in December 2015 the appellant was befriended by someone on Facebook who, it transpired, was the agent’s son involved with the EPDP.

7    On 27 March 2017 a delegate of the Minister refused the appellant’s application for a SHEV. In his decision the delegate included the following under the heading “Father’s connection to LTTE, disappearance”:

When asked about his father’s connection with the LTTE, the [appellant] stated that his father used to work in a hospital and treated LTTE members. When asked if that was his father’s only involvement with the LTTE the [appellant] stated that he was 14 at the time, and that if his father had further involvement it would have been secret. When asked whether his father had any medical qualifications, the [appellant] stated that his father had studied to become a nurse, and when asked when his father undertook his nursing studies the [appellant] said his father was working as a nurse at the time the [appellant] was born. It was put to the [appellant] that in his birth certificate his father’s occupation was listed as “farmer”, and not nurse. In response, the [appellant] stated that his father owned a lot of land and did farming on the side, and leased some of this land. The [appellant] stated that he did not know whether his father got the nursing job after the [appellant] was born, and could not remember. When asked if he had any documentary evidence to support the claim that his father was trained as a nurse the [appellant] stated that he did not because his family left home with only their clothes, and his mother did not bring any documents.

When asked why his father’s work at a government hospital in Kilinochchi in 2007 would have made him of interest to the Sri Lankan authorities, the [appellant] stated that because his father had involvement with the LTTE the authorities would think that his son would also be involved….

8    On 30 March 2017 the appellant was informed that the Minister’s decision refusing him a SHEV had been referred to the Authority. After that referral the appellant’s solicitor and migration agent provided a letter to the Authority from a Sri Lankan lawyer about the appellant’s claim that he had sued the agent and the commencement of that proceeding in the Magistrates Court of Vavuniya District. They also provided a statutory declaration made by a solicitor admitted in New South Wales and in the Supreme Court of Sri Lanka who was also an accredited translator in Sinhalese to English (and vice versa) and who provided an opinion that the Sri Lankan court documents appeared to be genuine.

AUTHORITY’S DECISION

9    The grounds of appeal raised by the appellant in his amended notice of appeal (see [22] below) are focused on two claims made by the appellant, namely his claim to fear harm because of his perceived links to the LTTE which are said to arise because of his father’s disappearance and his claim to fear harm because of his litigation against the agent. The Authority’s findings in relation to those claims are set out below. I note that despite the appellant disclaiming any prior statements made to the Department in his SHEV Statement, the Authority had regard to some of that material, as it was entitled to do. No complaint is made about that.

10    The Authority addressed the appellant’s claims about his father at [24]-[36] of its decision record. At [24] the Authority said:

The [appellant] claimed that his father worked as a nurse in Mulankavil Government Hospital and during the course of his employment he attended to many LTTE cadres who had been injured during the civil conflict. His father also owned several plots of land which he farmed and rented some of the land to others.

11    The Authority did not accept that the appellant’s father was a nurse and employed in a government hospital and that during his employment he looked after injured members of the LTTE or that he had any involvement with the LTTE, including in secret. That was for two reasons. First, the Authority observed that the appellant’s claims about his father’s involvement with the LTTE were not made at the entry interview. Secondly, the Authority found that the appellant’s evidence that his father was a nurse when he was born was contradicted by his birth certificate which listed his father’s “rank or profession” as “cultivation”. Having considered the appellant’s explanation for the discrepancies, the Authority was not persuaded that he had been a truthful witness about this aspect of his claims and was not satisfied that the claims were true.

12    The Authority accepted that the appellant’s father disappeared in November 2007. However, it did not accept that the appellant’s father disappeared because of any involvement with the LTTE or the TMVP. The Authority noted that the appellant’s own evidence was that his claim that his father was involved with the TMVP was not true. The Authority continued at [35]-[36] of its decision record:

35.    … it follows that I do not accept that the [appellant] was perceived to be involved or that his whereabouts were being sought on this basis also. No do not accept that there is sufficient evidence before me to establish that his father’s disappearance arose because his father was a Tamil.

36.    I also do not accept that as a consequence of the [appellant’s] father’s disappearance, the [appellant] will be viewed with suspicion on return. …

13    The Authority noted that the appellant’s father had disappeared over 10 years ago and found that his claims that he and his family had been questioned in the past about his father’s whereabouts had no credible basis. The Authority noted that there was nothing in the information before it indicating that the appellant would be imputed with an adverse opinion or profile by the Sri Lankan authorities as a result of his father’s disappearance. The Authority was therefore not satisfied that the appellant faced a real chance of harm, either on his return to Sri Lanka now or in the reasonably foreseeable future, as a consequence of his father’s disappearance.

14    In relation to the appellant’s claim to fear harm because of his litigation with the agent, the Authority accepted that the appellant applied for a UK student visa and that he used an agent to assist him with his applications. The Authority was satisfied that the appellant’s inability to provide certain facts about that application, including at which institution he was to study, the cost of the course or the visa or the reasons for the refusals demonstrated that the appellant did not have a significant level of involvement in the preparation and lodgement of the applications. The Authority noted the delegate’s concerns about the appellant’s use of an unaccredited agent and the absence of the agent’s name from the refusal letters for the visa but was satisfied that this did not render the appellant’s claims implausible.

15    The Authority accepted that after his two UK student visa applications were refused the appellant asked the agent to repay his money and that the agent made excuses for delaying payment. The Authority also accepted that in January 2012 the appellant approached the Sri Lankan police and made a complaint about the agent; the police acted on the complaint; the agent was arrested; a court proceeding was commenced; the proceeding was concluded; the agent was ordered to repay the money to the appellant by instalments, which the agent started to do; and on 23 July 2012 the appellant signed a power of attorney “to his aunty” to act on his behalf in relation to the proceeding.

16    Unlike the delegate, the Authority was satisfied that the documents provided by the appellant evidenced his complaint, the outcome of the proceeding and the power of attorney. Any concern on the part of the Authority about the veracity of the documents, given the prevalence of document fraud in Sri Lanka, was alleviated by the solicitor’s statutory declaration provided to the Authority in which the solicitor opined that the court documents appeared to be genuine.

17    However, the Authority did not accept that the appellant went with the police to arrest the agent in Colombo; the appellant paid for the van and food in order for the arrest to be executed; the agent’s sons are involved in or associated with the EPDP or the Sri Lankan government; the agent’s sons threatened the appellant; the agent and her sons are wealthy and influential; or that, since the appellant’s arrival in Australia, the agent or her sons have attempted to locate him. The Authority found that the appellant’s evidence about this aspect of his claims lacked credibility and was unconvincing. At [65] of its decision record the Authority said:

… The [appellant’s] evidence that he believed that the police did not act on the threats made against him by the agent’s sons because they had been paid money by the agent and her sons is incompatible with the documentary evidence of the police initiating a complaint and court proceedings against the agent. I am not satisfied that had the agent and her sons had the level of influence and wealth as claimed that a payment of money would have not been made at the initiation of the complaint by the [appellant] in order to ensure the complaint and the subsequent court proceedings did not occur.

18    After considering the balance of the appellant’s claims, the Authority concluded that the appellant was not a refugee within the meaning of s 5H(1) of the Act and did not meet the requirements of s 36(2)(a) of the Act. The Authority also considered whether the appellant met the requirements for complementary protection in s 36(2)(aa) of the Act but found that he did not.

THE FEDERAL CIRCUIT COURT PROCEEDING

19    The appellant filed an amended application in the Federal Circuit Court raising three grounds of review but only pressed grounds one and three in that court. Those grounds were:

1.    The second respondent (the IAA) erred by failing to consider a claim made by the applicant, being that his father was both a nurse at a hospital, and was also engaged in cultivation.

…

3.    The IAA erred in that it misunderstood the applicant’s claims as to the circumstances in which he instituted legal proceedings against an agent who had defrauded him, and therefore failed to consider the claim actually made.

Particulars

(a)    The IAA disbelieved the applicant’s claimed belief that the police did not act on his complaints of threats made against him by the agent’s sons was because they had been paid money by the agent. The IAA found that this was incompatible with his initiating a complaint and court proceedings against the agent because the agent could have paid money to prevent the case being started.

(b)    The claims actually made in their correct sequence was that a complaint was made to the police, the arrest occurred, the applicant was threatened and the police subsequently refused to act on his claims about the threats. Thus, on the applicant’s claims as correctly understood there was no opportunity for the agent to bribe the police before the arrest and initiation of proceedings.

20    In relation to ground one, the primary judge found that there was no claim that arose on the material that the appellant claimed to fear harm because his father was a farmer. His Honour noted that the Authority rejected the appellant’s claim that his father was a nurse and found that the Authority provided “logical and rational reasons in support of that finding”. The primary judge did not accept that there was any integer of the appellant’s claims that was not addressed in the Authority’s findings: ACA18 at [31]-[32].

21    In relation to ground three, the primary judge found that there was no indication that the Authority had misunderstood the appellant’s claim or the circumstances in which the proceeding was brought by the appellant against the agent or that there was anything illogical in its reasoning. The primary judge found that the Authority’s findings were open to it on the material before it: ACA18 at [33]-[35].

THE APPEAL

22    In his amended notice of appeal filed on 27 November 2018 the appellant raises the following grounds:

1.    The Court Below failed to engage with the argument put to it.

Particulars

(a)    That argument was that;

(i)    The appellant had claimed that his father had been a nurse and had also owned land which was cultivated;

(ii)    Had the claim that the appellant’s father had dual occupations been considered the second respondent may have accepted that he was a nurse and treated wounded LTTE cadres and,

(iii)    This could have led to a finding that the father’s disappearance was because he was suspected of assisting or sympathising with the LTTE. This in turn could have led to suspicions that his son held the same opinion.

2.    The Court Below erred in finding that the second respondent had considered all relevant claims advanced by the appellant.

Particulars

(a)    Error in failing to find that the applicant had advanced the claim, or integer of a claim, that his father had been a nurse and a cultivator, and in failing to find that the second respondent had erred in failing to consider this.

3.    The Court Below erred in finding that the second respondent had correctly understood the claimed sequence of events leading to the arrest of the agent who defrauded the appellant.

Particulars

(a)    Error in finding (at [34]) that “… the reference to a payment being made at the initiation of the complaint is a logical and rational process of reasoning that was open to the Authority in the circumstances where it is alleged the agent and the son could influence action being taken by the police.”

Grounds one and two

23    These grounds relate to ground one in the appellant’s amended application before the Federal Circuit Court. They raise for consideration whether the primary judge fell into error first, because in dismissing ground one below his Honour failed to engage with the argument put by the appellant in support of the ground and secondly in failing to hold that the Authority had erred in the exercise of its jurisdiction by, in turn, failing to deal with an integer of the appellant’s claim in relation to his father’s occupations.

The appellant’s submissions

24    In relation to ground one, the appellant submitted that the primary judge misconceived the argument that was put by him, provided inadequate reasons and failed to address it. He submitted that his case was not that he feared harm because his father was a farmer but that he feared harm because his father had been a nurse who treated wounded LTTE cadres. The appellant said that before the primary judge he argued that he had claimed that his father was both a farmer and a nurse and, had the Authority considered this, it might have found that his father had been a nurse who treated wounded LTTE cadres, had disappeared for that reason and that his father being suspected of having LTTE sympathies could have had consequences for the appellant. The appellant submitted that the primary judge failed to engage with any of these submissions and thus committed appealable error.

25    Ground two in the amended notice of appeal, as the appellant noted, substantially reproduces ground one relied on in the Federal Circuit Court. In oral argument the appellant submitted that the Court could in considering ground two, in effect, address any error that was found by reason of ground one. The appellant said that if that were done it would be to the benefit of both parties. I pause to note that the effect of this approach would be to obviate the need to remit the matter to the Federal Circuit Court, which would otherwise be the outcome if ground one was made out.

26    In support of ground two, the appellant first outlined the Authority’s reasoning for rejecting the claim that his father was a nurse. He characterised that reasoning in the following way:

(1)    the appellant agreed at the interview with the delegate that his father was studying to become a nurse when he was born;

(2)    the appellant said at the interview with the delegate that he did not know whether his father obtained the nursing job before or after he was born;

(3)    the claim of his father’s involvement with the LTTE was not made at the entry interview and the claim that his father was a nurse was contradicted by his own birth certificate which listed his father’s rank or profession as “cultivation”; and

(4)    in his invalid PV application the appellant claimed that he thought his father was involved with both the LTTE and the TMVP.

27    The appellant submitted that nothing in the Authority’s reasoning provided any cogent reason for rejecting the claim that his father was a nurse as well as a farmer at the time of his disappearance. He contended that the Authority approached the question of the appellant’s father’s occupation or profession on the basis that he was either a farmer or a nurse and could not be both. The appellant submitted that accordingly the Authority failed to consider the claim. The appellant further submitted that, had the Authority considered that the appellant’s father could have been both a nurse and a farmer, it may have accepted the argument set out at [24] above, namely that his father was a nurse who treated wounded LTTE cadres, disappeared for that reason and that his father heaving been suspected of having LTTE sympathies could have led to suspicion that the appellant held the same opinion, which would in turn lead to the appellant being in continuing danger.

Consideration

28    There is a degree of overlap between grounds one and two. Given the appellant’s focus on ground two, I will consider that ground first.

29    By that ground the appellant in effect contends that the Authority failed to consider a claim or a component integer of a claim made by him, namely that his father was a nurse and a farmer at the time of his disappearance. The appellant said that the Authority considered whether he was a nurse or a farmer but failed to consider whether he may have been both.

30    The applicable principles were not in dispute. In Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 a Full Court of this Court considered whether the Refugee Review Tribunal had failed to consider an aspect of the appellant’s claims. At [41]-[42], Allsop J (as his Honour then was) (with whom Spender J agreed) relevantly said:

41    The Tribunal, on a fair and straight-forward reading of its reasons, did not deal with the claim made by the appellant in his application for review by the Tribunal and supported by objective evidence that:

Due to my participation with Karen community and political groups I have made a number of friends, some of whom are members of the Karen National Liberation Army.

42    The “participation in the Karen community and the political groups” could be said to have been dealt with by the Tribunal dealing with the appellant’s activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]….

31    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] a Full Court of this Court relevantly said:

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE ([47]). …

32    The first question that arises is whether, as asserted by the appellant, the appellant made a claim that his father was a nurse and a farmer. The appellant said that the claim arises from the SHEV Statement and the answers given by him at his interview with the delegate as recorded in the delegate’s decision under the heading “Father’s connection to LTTE, disappearance” (see [7] above).

33    Insofar as the appellant’s father was concerned, in the SHEV Statement the appellant claimed that:

(1)    in 1999 he was living in an area controlled by the LTTE and his father was working as a nurse in the government hospital where, as part of his duties, he attended to many LTTE cadres who had been injured in the fighting. His father also had several plots of land, some of which they farmed and others of which were tenanted;

(2)    in November 2007 his father failed to show up for a planned visit with the appellant who was then living in Batticaloa. Despite his searching the appellant could not locate his father. The following day the appellant heard that some men went to his workplace looking for him. The appellant thought they were from the TMVP and decided not to return to his office and then decided to leave Sri Lanka;

(3)    in 2009, upon return to Sri Lanka after being in Singapore, the appellant was told he would have to report to the police because he had been overseas. His relatives “were very wary of that prospect” because there was talk that people who had been in the LTTE and sent overseas to raise money and increase its profile were now being “hunted down” by the Sri Lankan authorities. The appellant’s father was still missing and the appellant feared that “all this would attract too much suspicion … ”;

(4)    in February 2010 men came to his house in Sri Lanka looking for the appellant and asked about his father’s whereabouts;

(5)    in May 2012 the appellant was required to go the Army camp where, among other things, he was asked about his father’s kidnapping; and

(6)    the appellant fears that if he returns to Sri Lanka that on arrival he will be questioned about his connections with the LTTE; that when they discover he is from Kilinochchi they will find that he lived there when it was under LTTE control; that they will discover that his father has gone missing; discover his movements to and from Vavuniya and Singapore and the suspicion he was under as a result; and that this will “reawaken suspicions that I have links with the LTTE”.

34    As recorded in the delegate’s decision, the appellant made substantially the same claims in answer to questions posed to him by the delegate. That is, he said that:

(1)    his father used to work in a hospital and treated LTTE members. He was 14 at the time and if his father had any further involvement with the LTTE it would have been secret;

(2)    his father undertook nursing studies and was working as a nurse at the time of his birth;

(3)    insofar as his birth certificate recorded his father’s occupation as “farmer” and not nurse, his father owned land, did farming on the side and leased some of the land and he did not know if his father got the nursing job after his birth;

(4)    he had no documentary evidence to support the claim that his father trained as a nurse because his family left home with only their clothes and his mother did not bring any documents; and

(5)    his father’s work at the government hospital would have made the appellant of interest to Sri Lankan authorities because, as his father had involvement with the LTTE, the authorities would think that his son was also involved.

35    The appellant claimed that he feared harm because he would be perceived to have links to the LTTE or a pro LTTE political opinion. One way in which he said that was so was because of his father’s occupation as a nurse and his subsequent disappearance. The claims arising from the material summarised at [33]-[34] above all depended on the claim that his father had an occupation as a nurse. Contrary to his submissions, the appellant did not make a claim that he feared harm because his father was a nurse who attended to wounded LTTE cadres and a farmer at the time of the father’s disappearance. No aspect of his claim to fear harm because of perceived LTTE connections depended on or was connected to the fact that his father was also a farmer. Such a claim simply does not arise on the materials relied on by the appellant.

36    In other words, in terms of the way the appellant put his claim, the fact that his father was a farmer was of no consequence. That fact was not material to the appellant’s claim to fear harm because of an imputed connection to the LTTE and was not a basis on which the appellant propounded his claim to fear harm arising from his father’s disappearance. Rather the fear of harm was said to arise from the appellant’s father’s connection to the LTTE which, in turn, arose from his occupation as a nurse. It follows that, in my opinion, the Authority did not fail to address the claim as it was put.

37    The Authority rejected the appellant’s claim that his father was a nurse at [27] of its decision record. It did so for two reasons: first, because the appellant’s claims that his father was involved in the LTTE had not been mentioned in the entry interview; and secondly, because the appellant’s birth certificate was contrary to the claim as it described his father’s profession as “cultivation”. That finding was made after the Authority had, at [18] of its decision record, expressed its concern about the “significant discrepancies and evolution in [the appellant’s] evidence”.

38    The Authority then accepted that the appellant’s father had disappeared in November 2007 but did not accept that this was because of any involvement in the LTTE or the TMVP. In relation to the former, the Authority referred to its prior rejection of the claim that the appellant’s father was a nurse who attended to injured members of the LTTE and noted that there was no credible basis for this.

39    Accordingly, in my opinion, the Authority considered and rejected the claim as it was put to it by the appellant.

40    I then return to ground one. That ground must be considered in the context of the way in which ground one was framed when it was raised by the appellant in the Federal Circuit Court. As set out at [19] above, the appellant alleged that the Authority erred by failing to consider a claim that he made, being that his father was both a nurse at a hospital and engaged in cultivation. At [31] of ACA18 the primary judge referred to a submission made by the appellant’s counsel that “there was an integer of the [appellant’s] claim, being the combination of his father’s roles as a nurse and his engagement as a farmer or cultivator that meant that the Authority had not made findings in respect of the [appellant’s] claim”. That seems to me to encapsulate the ground as it was pleaded and to reflect the primary judge’s understanding of it. The primary judge then referred to a submission made by the appellant’s counsel and found that there was no claim arising on the material that the appellant claimed to fear harm because he was a farmer.

41    There is nothing further before me, for instance a transcript or written submissions relied on before the primary judge that would suggest that the primary judge misconceived the argument that was made by the appellant before him.

42    In BJM16 v Minister for Immigration and Border Protection [2019] FCA 143 (BJM16) at [34]-[36] Farrell J summarised the principles relevant to the obligation to provide reasons for decisions:

34    As discussed by Flick J in BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802 at [8]-[10], the judicial obligation to provide reasons for decisions derives from the judicial function and the “defining characteristics which mark a court apart from other decision-making bodies” (see Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [67] per French CJ), and it serves the function of enabling a matter to be properly considered on appeal. The provision of clear reasons for decisions also serves many other functions discussed in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441-2 per Meagher JA, which include assisting a party and the broader public to understand why the decision was made thus maintaining public acceptance of the judicial system and (hopefully) avoiding the feeling of grievance and injustice which a losing party might reasonably feel when they do not understand why a decision is made. Sufficient reasons guard against unconsidered and impulsive decisions.

35    It will “ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted”: see DAO16 v MIBP at [47] quoting Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA.

36    In AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 (AXL16 v MIBP), (at [21]) Perram J found reasons given by the same trial judge to be inadequate in circumstances where the Court could not discern why the primary judge rejected the central argument put by the appellant. The central argument was that the Tribunal’s reasons were illogical because they involved a non-sequitur. Justice Perram found that it was not enough to deal with this central argument for the primary judge to find that the Tribunal’s reasons were logical – that was the question not the answer.

43    Here the principal complaint is that the primary judge failed to engage with the argument that was put by the appellant or that his Honour misconceived the ground. The primary judge’s reasons are brief and lack detailed reasoning as to how his Honour reached his conclusions. As Farrell J observed in BJM16 at [40] the “exigencies of an ex tempore judgment in a high-volume court do not justify the brevity with which his Honour [the primary judge in that case] addressed the fifth ground”. To the extent that the appellant complains that the primary judge provided inadequate reasons in relation to ground one before him, the same can be said in this case. However, I am not prepared to find that there was a failure to engage with the argument that was put. As I have already found, based on the material before me, the primary judge understood the ground as pleaded. Having understood the claim, the primary judge addressed it but did so by providing conclusions and without explaining the basis for those conclusions in any detail. That being so and, given the reasons provided for my rejection of ground two set out above, I do not propose to remit the matter to the Federal Circuit Court to address any inadequacy in the primary judge’s reasons.

Ground three

44    By ground three the appellant alleges that the primary judge erred by failing to hold that the Authority committed jurisdictional error with respect to the sequence of events leading to the arrest of the agent who defrauded the appellant.

Appellant’s submissions

45    The appellant submitted that, contrary to the primary judge’s findings, the Authority’s analysis at [62]-[65] of its decision record ignored the claims he actually made and the sequence and evidence of the claimed events. The appellant said that the sequence of events was:

(1)    a complaint was made to the police in Vavuniya in January 2012 and issued to a magistrate. The suspect was recorded as having an address in Wellawate, Colombo;

(2)    the Vavuniya police arrested the agent and she was taken to Vavuniya and kept on remand;

(3)    court proceedings followed and it appeared that the agent started making repayments; and

(4)    the appellant was threatened and the police subsequently refused to act on the threats.

46    The appellant submitted that, contrary to the implication in the Authority’s findings at [65] of its decision record, the matter was registered with the court and the arrest occurred before there was an opportunity for the agent to bribe the police to ensure that the complaint was not made. The appellant further submitted that there was no evidence that the agent was, or could have been, forewarned so as to be able to bribe police to ensure the complaint was not made. He contended that this undermines the Authority’s further findings at [68] of its decision record that it was not satisfied that the agent or her sons had the level of power and influence claimed and that the threats of harm by the agent’s sons were not credible.

47    The appellant submitted that the primary judge erred in finding that the Authority correctly understood the claims actually made and that the Authority failed to lawfully exercise its jurisdiction.

Consideration

48    Ground three focuses on [65] of the Authority’s decision record and the finding by the Authority that it was “not satisfied that had the agent and her sons had the level of influence and wealth as claimed that a payment of money would have not been made at the initiation of the complaint … in order to ensure the complaint and the subsequent court proceedings did not occur” (emphasis added). That finding was made in response to the appellant’s claim that the police refused to act on his later complaint of a threat made against him by one of the agent’s sons because the police had been paid money by the agent and her sons.

49    In oral submissions the appellant said that he took the words “initiation of the complaint” in the Authority’s decision record to mean “at the start of the proceedings”, but he submitted that this nonetheless took place before the agent was arrested and therefore before she could have known that the complaint had been made. The appellant relied on the document titled “Sri Lanka Police: Information issue to Magistrate” (Information) which was before the Authority and which it accepted evidenced the complaint. The appellant said that this was evidence that the Information was given to the court before the agent could have known she was going to be charged. Thus the appellant said that the Authority’s finding that a payment would have been made at the initiation of the proceeding was not available on the evidence, with the result that the Authority failed to consider the claim as it was put.

50    In my opinion the appellant’s interpretation of the word “initiation” is too narrow. Contrary to the appellant’s submissions, I do not accept that in the context of [65] of the Authority’s decision it could only mean at the very time the proceeding was commenced by presentation of the Information to the court. The role of an administrative decision maker’s reasons is to inform. They are “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). But that is in fact what the appellant has done in applying his narrow interpretation to this part of the Authority’s reasons.

51    As the Minister submitted the Authority identified the implausibility of the appellant’s claim in that if the agent and her sons had the power and influence the appellant claimed she had to prevent the police from taking up a complaint, then she would have used that power at an earlier stage upon becoming aware of the proceeding against her to avoid arrest and the progression of the proceeding. There was no error in the primary judge’s reasons. He correctly held that there was nothing illogical in the Authority’s reasoning and that its finding at [65] was open to it in the circumstances before it.

conclusion

52    For those reasons the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    28 February 2019