FEDERAL COURT OF AUSTRALIA

ANN15 v Minister for Immigration and Border Protection [2019] FCA 246

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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

THAWLEY J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia made on 5 July 2018 dismissing an application for judicial review of a decision of the Refugee Review Tribunal dated 17 March 2015. The Tribunal had affirmed a decision of a delegate of first respondent (Minister) made on 2 August 2013 to refuse the appellant’s application for a Protection (Class XA) visa.

2    The appellant advanced a single ground of review before the Federal Circuit Court, namely that the Tribunal failed to comply with the requirements of s 424A(1) of the Migration Act 1958 (Cth) in respect of information it considered would be the reason, or a part of the reason, for affirming the decision under review. The relevant information which the appellant contended in the Federal Circuit Court attracted the obligation in s 424A was “information that President Sirisena was recently elected as president as part of a UNP [United National Party] coalition”.

3    Sections 424A(1) to (3) relevantly provide:

Information and invitation given in writing by Tribunal

(1)      Subject to subsections (2A) and (3), the Tribunal must:

(a)      give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)      ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)      invite the applicant to comment on or respond to it.

(2)      The information and invitation must be given to the applicant:

(a)      except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)      if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)      The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)      This section does not apply to information:

(a)      that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)      that the applicant gave for the purpose of the application for review; or

(ba)      that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)      that is non-disclosable information.

4    The Federal Circuit Court found that the relevant information “was the electoral success of the UNP” and this fell within s 424A(3)(a) as information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.

Background

5    The appellant is a citizen of Sri Lanka who arrived at Christmas Island as an “irregular maritime arrival” on 1 July 2012. He applied for a protection visa on 13 November 2012.

6    The appellant’s claims for protection were summarised by the Federal Circuit Court at J[4]:

a)     he was born in Negombo, Sri Lanka and is a Tamil Hindu;

b)     his family had always supported the United National Party (“UNP”). Although he was a member of the party, he was only an observer who sometimes assisted, not an activist;

c)     he was involved in one election in October 2011. It was a local government election and he had supported the UNP candidate (“SM”) by putting up posters and campaigning door-to-door;

d)     the election was won by SM. The losing candidate’s brother, named “NL”, a local member of parliament from the Sri Lankan Freedom Party (“SLFP”), was upset by the UNP’s victory;

e)     at around this time, his father died as a result of being chased and pushed by political enemies;

f)     he attended the May Day rally in Jaffna 2012 with a group of political colleagues. NL had confronted them and told them not to go but they ignored his request. While he was in Jaffna, his mother called him and said that NL’s supporters had come to their home and broken windows. She told him not to come back. He stayed at his uncle’s place in Jaffna for a few days and then left by boat for Australia;

g)     he had been attacked many times in the past because of his support for the UNP;

h)     his family used to live across the road from the SLFP office of NL. They moved in January 2014 after receiving threats and had not had any trouble since then;

i)     in about January 2014 his brother, who was also a UNP member, was attacked by one of NL’s supporters;

j)     NL’s family were powerful criminals and were known to do bad things to people. They were angry at him because he had campaigned against them;

k)     he had relatives living in the Vanni area of Sri Lanka who had been members of the Liberation Tigers of Tamil Eelam (“LTTE”) but he had never been questioned by the police or the army about his connection to them; and

l)     as a Tamil he would be perceived as being associated with the LTTE. He would also be at risk because of his illegal departure from Sri Lanka and his membership of the particular social group comprised of “failed asylum seekers from a western country”.

7    On 2 August 2013, the delegate notified the appellant of her decision to refuse the appellant’s visa application. Nothing in the appeal turns on the delegate’s reasoning.

The Tribunal

8    On 12 August 2013, the appellant’s representatives applied to the Tribunal for review of the delegate’s decision. The appellant was invited to attend a hearing, which took place on 15 January 2015. He was represented.

9    The Tribunal set out the appellant’s claims and evidence from T[4] to T[36] of its statement of decision and reasons. In summary, the Tribunal accepted the appellant’s claims that:

(1)    he provided low-level local campaign support to the UNP in one local government election campaign in October 2011 but was never a formal member of the UNP: T[41], T[53];

(2)    he and his family received adverse treatment from “NL” and his family and supporters: T[43], T[44];

(3)    his father was shoved and pushed by NL’s supporters in 2011, causing him to fall and injure himself and to subsequently die from a heart attack: T[44];

(4)    he travelled to Jaffna together with 70 other Tamil UNP supporters from his hometown to participate in a May Day rally in May 2012, despite being warned by the family and supporters of NL not to attend: T[45];

(5)    while he was at the May Day rally, supporters of NL went to his family home and damaged property: T[45]; and

(6)    his brother was assaulted by a supporter of NL’s family on his way home from a funeral in January 2014: T[46].

10    The Tribunal did not accept that the appellant was attacked many times in the past for reason of his support for the UNP: T[42]. It did not accept that the appellant or any member of his family was threatened with harm after the attack on their home in May 2012, with the exception of the applicant’s brother in January 2014 (as mentioned above): T[46].

11    At the hearing, the Tribunal asked the appellant to comment on information regarding the recent election of President Sirisena and the status of the UNP. This can be seen in the Tribunal’s reasons at T[27] and T[28] (emphasis added):

27.    The Tribunal noted that it [had been] almost three years since the 2012 May Day incident and that there was now a new President in Sri Lanka, and it asked him to explain why, in those circumstances, [NL] would want to harm him. … The Tribunal put to him that high profile opponents and rivals of [NL’s family] might be at risk of harm, but it was difficult to understand why he, a low profile UNP supporter, who supported the UNP in one election in October 2011, would be at risk of harm three years after he left the country. …

28.    The Tribunal noted that the information before it from independent sources indicated that UNP politicians, UNP candidates and members and high profile UNP supporters had been subjected to attacks in recent years, and reports indicate that election day violence has occurred, however, there were few reports to indicate that low-level UNP supporters had been subjected to targeted adverse treatment and violence in the recent past. In response, he said the low-level supporters were the ones most at risk and that the violence against them was not being reported. The Tribunal discussed the submissions of his agent which referred to under-reporting of incidents and the existence of some reports of attacks against UNP supporters in the past. It asked him to comment on the recent election of President Sirisena who was part of a UNP coalition, which suggested the UNP was now part of the ruling government and that the situation for UNP supporters could be likely to improve in the future. In response he said that the new president was formerly a member of the past government and it is too early to know what will happen in the future.

12    The Tribunal also referred later in its reasons to information concerning the election of President Sirisena and the recent electoral success of the UNP in the context of assessing whether there was a real chance the appellant would suffer serious harm on his return. The Tribunal stated (emphasis added):

53.    In light of its findings that he was a low-level supporter of the UNP in one election campaign in October 2011, the Tribunal is prepared to accept that on return he would continue to provide ‘low-level support’ to the UNP during any future election campaigns. As discussed with the applicant at the hearing, the independent information before the Tribunal indicates that in the past UNP members and candidates had been subjected to violence during election periods by supporters of the UPFA and the SLFP, however, there were few reports to indicate that low-level UNP supporters had been subjected to targeted adverse treatment and violence in the recent past. He claimed that low-level supporters were the ones most at risk and that the violence against them was not being reported. In his submissions, the agent raised claims about the under-reporting of incidents and referred to the existence of some reports of attacks against UNP supporters in the past but argued that, the issue for consideration, was what would happen to the applicant in his particular circumstances, which include the fact he had already come to the adverse attention of the [family of NL] who know of his past support for the UNP and campaign-related activities in Negombo.

54.    In this context, the Tribunal has carefully considered the information referred to in the written submissions of his migration agent, as well as the ‘Issues Paper’ of June 2013 prepared by the Tribunal’s former Country Research Unit ‘Sri Lanka: Treatment of Opposition Groups, Critics, and Persons with Certain LTTE Links’, and the recent DFAT reports ‘Country Information Report: Sri Lanka’ dated 3 October 2014 and 16 February 2015. It has also taken into account UNHCR’s most recent ‘Eligibility Guidelines’ from October 2012, which do not identify or refer to UNP members or supporters as being generally at risk of persecution. It also notes that, in January 2015, a new President belonging to a UNP coalition was elected to a five year term, which indicates the UNP is now effectively the ruling party in Sri Lanka [citing ‘Country Information Report: Sri Lanka’, DFAT, 16 February 2015].

55.    Having considered the evidence and information before it, the Tribunal considers that the chance the applicant would suffer serious harm for reasons of his low-level support for the UNP, including during election periods when it accepts he would provide campaign-related assistance such as putting up posters and door-knocking in his local area, from or by supporters of opposing parties, is remote and far-fetched. As noted above, there are few reports to indicate that low-level supporters of the UNP had been subjected to targeted violence or harm in the recent past, and in the Tribunal’s view the available information does not support a finding that there is a real chance that a low-level supporter of the UNP would be subjected to serious harm in the reasonably foreseeable future in the Negombo area or anywhere else in Sri Lanka. In the Tribunal’s view, the fact a UNP lead [sic] coalition government is now in power in Colombo would further reduce the chance that a low-level UNP supporter such as the applicant would be subjected to serious harm in the reasonably foreseeable future. On the information before it, the Tribunal is not prepared to accept the claims made by the applicant and his agent that a greater number of targeted incidents do in fact occur but are not reported by media or human rights organisations. In making this finding it has considered but, on the information and evidence before it, including the reasons set out below in paragraphs 57 to 59, does not accept that, because the [family of NL] are already aware of his support for the UNP, including his campaign-related activities in Negombo, he is at an increased risk of being subjected to serious harm, for reasons of his future UNP support and activities, and that the chance of that happening would be more than a remote chance.

…

59.    For all of these reasons, on the evidence and information before it, including that a UNP lead [sic] coalition government is in power in Colombo, the Tribunal considers that the chance the applicant would be subjected to serious harm by a member or supporter of the [family of NL], for reasons of his UNP support or any other reason, is remote and far-fetched, and the Tribunal does not accept there is a real chance he would suffer serious harm in that way or for those reasons in the event he returns to Sri Lanka in the reasonably foreseeable future.

13    On 18 March 2015, the Tribunal notified the appellant of its decision to affirm the delegate’s decision to refuse the protection visa application.

Federal Circuit Court

14    The single ground of review which the appellant advanced before the Federal Circuit Court was in the following terms:

The RRT failed to comply with s 424A of the Act.

Particulars

The RRT did not comply with s 424A in relation to the information that President Sirisena was recently elected as president as part of a UNP coalition.

15    The Federal Circuit Court recorded at J[10] that the appellant’s argument was based upon the following finding by the Tribunal at T[55]:

… In the Tribunal’s view, the fact a UNP lead [sic] coalition government is now in power in Colombo would further reduce the chance that a low-level UNP supporter such as the applicant would be subjected to serious harm in the reasonably foreseeable future. …

16    That finding was made by the Tribunal after having considered the ‘Country Information Report: Sri Lanka’ prepared by the Department of Foreign Affairs and Trade dated 16 February 2015, which post-dated the hearing held on 15 January 2015: T[54] n 6.

17    The Federal Circuit Court dealt with the appellant’s argument at J[13] to J[15]:

13.    The applicant contended that it could be inferred from what the Tribunal said in para 28 of its decision that it had concluded that the UNP had come into power because its candidate had been elected president and thus the information about that candidate as an individual was information for the purposes of s 424A(1) and did not fall within the exception in s 424A(3)(a).

14.     Contrary to that contention, I have concluded that the matter which was relevant to the Tribunal was the status of the UNP, not the success of the presidential candidate as an individual. True it is that in January 2015 the only UNP-associated individual whom the Tribunal identified to the applicant was its presidential candidate but the Tribunal’s reasons at para 28 of the decision record indicate that that person’s significance lay not in his achievement as an individual but as an exemplar of the success of the party whose candidate he was.

15.     I find that the relevant information was the electoral success of the UNP, of which the election of its presidential candidate was presumably no more than the most obvious indication. Such information fell within a s 424A(3)(a) and so did not need to be given to the applicant pursuant to s 424A(1). Consequently, the fact the Tribunal did not give that information to the Tribunal pursuant to that provision does not amount to jurisdictional error.

The appeal

18    The appellant contended in written submissions that the relevant information which attracted the Tribunal’s obligations under s 424A(1) was “information that President Sirisena had been elected and was part of a UNP coalition”. The appellant submitted that such information was information about President Sirisena “as a person” which tended to undermine the appellant’s claim to fear harm by reason of being a UNP supporter. He argued that “it was the information about President Sirisena – that he was in a coalition with the UNP – which bore upon the status that the UNP thereby achieved”.

19    The Minister contended that the information was not specifically about President Sirisena as a person. Rather, it was information about the fact that, since the appellant arrived in Australia, the political party he claimed to have supported was no longer in opposition, but formed part of a government coalition.

20    That which attracts the obligation in s 424A(1) is information “that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the review: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [15].

21    The first step is to identify what information it is said should have been provided. Information which was not perceived to have any dispositive relevance could not come within s 424A(1) because it could not be said to be information “that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.

22    The better view of what occurred, informed by a reading of the Tribunal’s reasons, is that the Tribunal became aware sometime before the hearing on 15 January 2015 of the election of Mr Sirisena as president. He was elected on 8 January 2015. As is made clear at T[28], the information which the Tribunal perceived as being information that might have some dispositive relevance was that a new president had been elected “who was part of a UNP coalition, which suggested the UNP was now part of the ruling government and that the situation for UNP supporters could be likely to improve in the future”.

23    This was not information “specifically about” a person; rather it was information concerning the status of the UNP in Sri Lanka, informed by the fact that a person who was “part of a UNP coalition” had been elected. The fact that it was President Sirisena specifically who had been elected president was not information which the Tribunal considered might form (in the sense of “would be”) the reason, or a part of the reason, for affirming the decision under review.

24    In this respect, the case has similarities with SZVCZ v Minister for Immigration and Border Protection (2017) 252 FCR 540. In that case, it was contended that the relevant information (the “Asserted Information”) attracting the obligation under s 424A(1) was:

•    first, that many of Pakistan’s most prominent leaders, including Prime Minister Sharif, the assassinated Prime Minister, Benazir Bhutto, and the former President, Pervez Musharraf, attended Christian schools; and

•    secondly, that two of Pakistan’s five provincial governors attended the celebration by Forman Christian College of its 150th anniversary.

25    Each member of the Full Court concluded that the information was not information specifically about the named individuals: at [2] (Sipois J); [5] (Logan J); [67]-[69] (Markovic J). Markovic J stated at [69]:

In the present case the Asserted Information was information about prominent leaders in Pakistan who were associated with Christian schools. It was not information specifically about Prime Minister Sharif and the two provincial governors. Those persons were referred to by way of example.

26    Her Honour also gave the example furnished by the Full Court’s decision in Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298, stating at [68]:

The Asserted Information is similar in character to the information considered by the Full Court in SZHXF. The Full Court held at [22] that reference by the Tribunal to prominent figures in the Ahmadi faith, such as Mirza Ghulam Admad, Jesus Christ and the prophet Muhammad, was not information for the purposes of s 424A(3)(a) of the Act because reference to those figures and any material about how they were perceived by the Ahmadi faith was not information about those figures themselves. It was information about how others perceived such people and the role that such perceptions played in the lives of those who held them.

27    The “information” which the Tribunal was considering it might deploy in its reasoning was not information “specifically about” President Sirisena, and thus fell within s 424A(3)(a).

28    I note that s 424A(3)(a) does not contain a separate requirement that the information be “just about a class of persons of which the applicant or other person is a member”. As the Full Court said in SZHXF at [19] (emphasis in original):

In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant “information” is “just about a class of persons of which the applicant or other person is a member”. The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563 that the reference to the “class of persons” in s 424A(3)(a) “is not another criterion to be met”. Rather, the reference “is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it”: see also VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at 95 (per Kenny J) and 99 (per Downes J); NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17].

29    Because the relevant information fell within s 424A(3)(a), the Tribunal was not required to give the appellant written particulars of that information pursuant to s 424A(1). It is not necessary to determine whether the Tribunal considered the information “would be the reason, or a part of the reason, for affirming the decision” – as to which, see: BFW16 v Minister for Home Affairs [2019] FCA 191 at [15] (Derrington J); BVE16 v Minister for Immigration and Border Protection [2018] FCA 922 (Gleeson J).

30    During oral argument, it was submitted that the fact that the newly elected president was Mr Sirisena had particular relevance to the appellant because he had made a claim that the previous president, Mahinda Rajapaksa, had personally intervened in certain relevant events. The appellant’s statutory declaration, which had been before the Tribunal, included:

We Tamils, supported [SM], also a Tamil from United National Party in the council elections held in October 2011. He won. This victory upset [NL], my local MP who was a member of the ruling party and a very powerful politician. My father was a supporter of the UNP. He passed away on 30 October 2011 of a heart attack, as he was chased and pushed down to the ground. It was obvious that my father’s heart attack was caused by stress and fear when he tried to escape this attack perpetrated by political enemies.

In February or March 2012, the police went to [NL’s] house searching for weapons. The President of Sri Lanka, Mahinda Rajapakshe [sic] went to [NL’s] place and personally intervened to stop all search. This is to show how powerful [NL] is in our area.

31    There is no mention in the Tribunal’s reasons that it considered that the identity of the newly elected president “would be” (s 424A(1)(a)) in any way relevant to the appellant’s claim, let alone the reason, or a part of the reason, for affirming the delegate’s decision. Nor would I infer that it was, particularly absent any cogent reason why it might be. There is nothing to suggest that the Tribunal considered the information that it was President Sirisena who had been elected was relevant to affirming the decision because of some connection with the claim identified by the appellant in his statutory declaration.

Conclusion

32    The appeal must be dismissed with costs.

Associate:

Dated:    1 March 2019