FEDERAL COURT OF AUSTRALIA

AYU16 v Minister for Immigration and Border Protection [2019] FCA 269

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    On 12 October 2018, the Federal Circuit Court of Australia dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal dated 23 March 2016. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection visa.

2    By way of a notice of appeal filed on 16 October 2018, the appellant advanced one ground of appeal, namely that he believed the decision of the Federal Circuit Court was “affected with legal error”.

3    The Federal Circuit Court set out the relevant background at J[3] to J[9]:

3.     The applicant is a citizen of Sri Lanka who arrived in Australia on 10 August 2012 as an “unauthorised maritime arrival” (CB 37 to CB 38). The applicant applied for the protection visa which was received by the Minister’s department on 3 December 2012 (CB 25 to CB 96 and CB 101). The applicant was assisted by a firm of solicitors in making his application (CB 72).

4.     The applicant’s claims to fear harm were contained in a Statutory Declaration dated 27 November 2012 attached to his protection visa application form (CB 77 to CB 80). The applicant claimed to fear harm on the basis that he was a Tamil fisherman and a “member of the committee of the fisherman in Mannar” (“the Fishermen’s Association”) who “were chosen to talk to the army to lift the [fishing] restrictions” ([4] at CB 78). Following a meeting between the committee members and members of the Sri Lankan Army (“SLA”) in 2008, the applicant claimed to have experienced problems with the SLA ([5] – [8] at CB 78).

5.    The applicant claimed that he was forced to resign from the committee in November 2008 and although a “few days” later his house was “ransacked” by SLA officers, the applicant “did not have any particular problems from 2008 to 2011” ([9] – [11] at CB 79). The applicant claimed to have been approached in 2011 by members of the SLA and told that there were “charges pending against” him concerning the meeting in 2008. Following a Tamil National Alliance protest in 2012, in which the applicant did not participate, he left Sri Lanka for Australia ([12] – [15] at CB 79).

6.     The applicant was invited to, and attended, an interview with the delegate on 20 May 2013 (CB 101 to CB 106 and CB 124.4). The delegate refused the application for the visa on 7 August 2013 (CB 110 to CB 142).

7.     The applicant applied for review to the Tribunal which was received on 16 August 2013 (CB 143 to CB 149). The applicant appeared at a hearing before the Tribunal on 18 November 2015 (CB 228 to CB 229). The applicant’s then representative provided further documents to the Tribunal via email on 29 September 2015 (CB 201 to CB 210) and 25 November 2015 (CB 235 to CB 257). The documents contained in the email dated 25 November 2015 included another Statutory Declaration made by the applicant dated 23 November 2015 (CB 247 to CB 251).

8.     The Tribunal affirmed the delegate’s decision on 23 March 2016 and the applicant was notified by email sent to his then representative on the same date (CB 261 to CB 295).

9.    On the evidence before the Court, The Minister’s written submissions provide a fair and accurate summary of the relevant Tribunal decision and for the purposes of this judgment I adopt the relevant paragraphs as follows ([6] – [8] of the Minister’s written submissions):

“[6] The Tribunal set out a lengthy summary of the evidence given by the applicant at the hearing (CB 279–286: [50]–[76]), and the content of post-hearing submissions and additional material (CB 284–286: [77]–[91]). The Tribunal rejected the applicant’s claims on account of adverse credibility findings (CB 287: [93]). The Tribunal made the following key findings:

(a)     it accepted that the applicant is a Catholic Tamil fisherman from Sri Lanka’s Northern Province, but noted that he made no claims to fear harm in relation to his religion, and was not satisfied that he would face a real chance of persecution for that reason (at [95]);

(b)     it was not satisfied the applicant would face a real chance of persecution for reason of any help he gave or was perceived to have given to his grandfather in his grandfather’s campaign for public office (CB 288: [96]), on account of having been a fisherman (CB 288: [37]) or his involvement in the fishermen’s association (CB 288: [98]–[99]);

(c)     on the basis of inconsistent evidence, it did not accept the applicant was taken to a navy camp for interrogations or warnings (CB 288: [101]);

(d)     it found the applicant continued to fish with full permission from the authorities until he came to Australia, and gave weight to this factor in its overall findings (CB 289: [103]);

(e)     it did not accept that he was placed on reporting conditions by any authority in Sri Lanka or that the authorities came looking for him after he left Sri Lanka (CB 289: [104]);

(f)     it was not satisfied that the applicant faced a real chance of persecution for reason of having sought asylum abroad (CB 289: [107]); and

(g)     it found that the applicant’s claims about distress to his family if he is removed from Australia is speculative and did not give rise to a real chance of the applicant facing Convention-related persecution (at [115]).

4    The appellant was represented at the hearing before the Federal Circuit Court on 1 March 2018. The grounds ultimately pressed were grounds three, four, six and seven. The parties were afforded an opportunity after the hearing to file submissions, consequent upon the appellant being granted leave at the hearing to amend the particulars to ground four. The Minister filed submissions. The appellant did not.

5    The Federal Circuit Court concluded that ground three, which asserted a failure to assess an integer of the appellant’s claims, was not made out because:

(1)    the appellant did not expressly claim to fear harm because of his membership of, or leadership of, a sports club; and

(2)    such a claim did not clearly arise from the material before the Tribunal or the circumstances – see: J[13] to J[21].

6    Ground four alleged breaches of procedural fairness in relation to the conduct of the hearing before the Tribunal, in particular in relation to the questions put by the Tribunal to the appellant. The error was understood as being put as a breach of s 425 of the Migration Act 1958 (Cth). The Federal Circuit Court concluded, after considering the particulars in detail and having regard (amongst other matters) to the transcript of the Tribunal hearing, that none of the particulars were made out – see: J[22] to J[80].

7    Ground six, which asserted in summary that “the Tribunal failed to consider the likely harm the applicant could suffer due to his conduct in expressing his political opinion explicitly”, could not succeed because the Tribunal did consider the appellant’s claims – see: J[81] to J[89].

8    Ground seven, which alleged that the Tribunal failed to have regard to the fact the appellant “may fall” into the category of “vulnerable person”, was rejected because (amongst other reasons) it did not accurately reflect what the Tribunal in fact did – see: J[90] to J[98].

9    The appellant sent an email to the Court on 23 February 2019. In that email, the appellant submitted that the Federal Circuit Court erred and ought to have found that the Tribunal had made a jurisdictional error on the basis of the grounds argued before the primary judge. The appellant referred to T[49] of the reasons of the Tribunal and paragraphs J[92] to J[95] of the reasons of the primary judge.

10    Paragraph T[49] was in the following terms:

In a post-hearing submission, [the appellant] mentioned that he had previously been treated for mental health problems, but had ceased treatment around a year before. I have duly considered this information as potential evidence of genuine fear of serious and/or significant harm in Sri Lanka and in the context of considering whether [the appellant] was able to provide meaningful evidence at the Tribunal hearing. I am satisfied on the evidence before me that he has been able to give meaningful evidence in this matter, including the oral evidence he provided at the Tribunal hearing.

11    Paragraph J[92] to J[95] were:

92.    The Tribunal did consider the issue of the applicant’s mental health. One, it did so in the context of ensuring the applicant was given a meaningful opportunity to give his evidence at the hearing (see [49] at CB 279). The Tribunal specifically had regard to the applicant’s post hearing submissions of 25 November 2015 on this matter.

93.     Two, the Tribunal also had regard to the Administrative Appeals Tribunal’s “Guidelines on the Assessment of Credibility”, in the context of considering whether the applicant’s claimed mental health issues affected his memory, and the potential impact of this on his anxiety for his partner and child (see [93] at CB 287).

94.    However, given the “number of significant inconsistencies” in the applicant’s evidence, the Tribunal was not satisfied these were due to circumstances outside of his control. The ground again seeks impermissible merits review.

95.    I note that the applicant’s written submissions (at page 9) concede that the Tribunal did consider the mental health issues “solely when dealing with the applicant’s credibility”.

12    In his email of 23 February 2019 the appellant submitted:

There was no regard to whether mental health problem of themselves give rise to a fear of relevant harm as promised in [paragraph 49] of the Administrative Appeals Tribunal.

13    The email also stated:

I am without any work rights in Australia and undergoing counselling at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) at Blacktown in Western Sydney, New South Wales.

14    The email attached a scanned copy of a “Health Summary” signed by Froid Xavier, Psychologist, dated 21 February 2019. Mr Xavier works with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). In the report, he sets out an account of the appellant’s history in Sri Lanka, his difficulties in Australia, his past and present treatment and his future treatment needs.

15    There was no medical evidence before the Tribunal with respect to the appellant’s mental condition. There was however, a statutory declaration dated 23 November 2015 which included the following:

I have found while in Australia I have often experienced difficulty understanding others and had periods where I have had a total confused state of mind. I was previously receiving treatment in Australia for mental health problems. However, I have not been receiving this type of treatment for around 12 months.

16    That statutory declaration was provided to the Tribunal after the hearing on 18 November 2015 together with submissions prepared by the lawyers representing the appellant. Those submissions addressed, amongst other matters, credibility concerns which had been raised during the hearing by the Tribunal. It was in this context that the Tribunal made the observations which it did at T[49], extracted above.

17    The appellant did not make a claim to the Tribunal that he had mental health problems which, of themselves, gave rise to a fear of relevant harm. Nor was such a claim apparent from the material before the Tribunal.

18    The Federal Circuit Court observed at J[97] and J[98]:

97.     The post hearing submissions from the applicant’s representative before the Tribunal dated 25 November 2015, to which the Tribunal had specific regard, raised the issue of the applicant’s mental health in the context of the credibility concerns raised by the Tribunal with the applicant at the Tribunal hearing.

98.    The Tribunal considered the mental health issue in the context in which it was raised. There is nothing before the Court to suggest that the applicant ever claimed to fear harm in Sri Lanka due to his “mental health problems”. In all, ground seven is not made out.

19    These conclusions are not affected by error.

20    During oral argument in the appeal, the appellant referred to documents which he said he had asked his lawyers to put to the Tribunal but which had not been placed before it. I reviewed these documents to consider whether there was any basis upon which they might be admitted. The task of finding the facts was that of the Tribunal. The documents would not have been admissible as fresh evidence before the Federal Circuit Court in judicial review proceedings, which are directed at the correction of jurisdictional error: Waterford v Commonwealth (1987) 163 CLR 54 at 77–78. The documents went only to the underlying facts and were not of a nature that might make them admissible as relevant to establishing jurisdictional error on the part of the Tribunal or legal error on the part of the Federal Circuit Court. They were not admissible on the appeal.

Conclusion

21    The appellant has not demonstrated any appellable error in the reasons of the Federal Circuit Court or any jurisdictional error on the part of the Tribunal.

22    It follows that the appeal must be dismissed.

Associate:

Dated:    5 March 2019