FEDERAL COURT OF AUSTRALIA

BCD16 v Minister for Immigration and Border Protection [2019] FCA 592

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must 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

FARRELL J

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA), see: BCD16 v Minister for Immigration and Border Protection [2017] FCCA 1914. The primary judge dismissed with costs the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Protection (Class XA) visa.

Background

2    The appellant is a citizen of Sri Lanka. He is Sinhalese and of the Buddhist faith. He arrived in Australia on 9 July 2008 as the holder of a Student (Class TU) (subclass 573) visa. He applied for a visa on 13 May 2014.

Protection claims

3    The primary judge's summary of the appellant's protection claims and the delegate's decision was based on the appellant's submissions to the FCCA. They are replicated in the appellant’s submissions to this Court and relied on by the Minister. The summary appears at J[5]-[11] as follows:

5.    The applicant's protection visa application was accompanied by an undated statement, copies of biographical evidence and various newspaper articles concerning the treatment of media professionals, the behaviour of Sri Lanka High Commissioner Thisara Samarasighe, the release of the Field Marshal and politician Sarath Fonseka from prison, and the treatment of asylum seekers returned to Sri Lanka.

6.    In his statement, the applicant said that he and his family were supporters of the United National Party (UNP) and that growing up he had always dreamed of being a Member of Parliament, whilst his brother had aspired to become a journalist. The applicant said that after he finished his schooling, he started to work with his brother at [a named] newspaper, which along with the UNP was against the escalation of hostilities between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan authorities. The applicant said that as a UNP supporter he had met with LTTE commanders in Jaffna, Vanni, Batticaloa and Trincomalee. He said that he was opposed to the ruling Rajapaksa brothers, who were in turn opposed to the UNP and sought to suppress the media.

7.    The statement continues that, with the dissolution of the ceasefire agreement, the Rajapaksa brothers started to intimidate, harass and kill those who worked against them, and the applicant and his brother stopped visiting LTTE supporters and feared publishing articles against the government. The applicant said he later received threats and was accused of working against the government and assisting LTTE cadres. The applicant said that around March 2008 he was detained by the Criminal Investigation Department (CID), beaten and accused of supporting the LTTE. The applicant then left Sri Lanka as soon as his student visa was approved.

8.    In Australia, the applicant accepted an offer to work as a radio presenter at Sak Nada Community Radio in Sydney, providing coverage of events in Sri Lanka, including the Rajapaksa government's involvement in corruption, abductions and violence. However, he received calls from Sinhalese people in Australia and the Sri Lankan High Commission, telling him to stop canvassing against the government.

9.    The statement continues that after the defeat of the LTTE in 2009, the applicant thought that peace would return to Sri Lanka and he gave in to his father's requests to come and see him. However, while he was in Sri Lanka he was interviewed by police, who said that as a newsreader in Australia he had been acting against the government. The applicant was released after bribes were paid to the police and he returned to Australia before he could be arrested again.

10.    The applicant was interviewed in relation to his protection visa application by the delegate on 24 October 2014 and provided further supporting evidence in the form of a Service Appreciation Letter, evidencing his work for Sak Nada community subscription station, and photographs of the applicant at a demonstration against the Sri Lankan government in Canberra in 2010 and in the Northern Province of Sri Lanka in 2003 and 2005.

11.    By letter dated 31 October 2014, the applicant was notified of the delegate's decision to refuse his application for a protection visa. The delegate found the applicant to lack credibility, referring to his manner and demeanour at the interview and the fact he had returned to Sri Lanka and that he had delayed applying for protection. The delegate accepted that the applicant's brother was a journalist in Sri Lanka but did not accept that the applicant had worked as a journalist or in a media role and did not consider he would have a risk profile that would bring him to the adverse attention of the Sri Lankan authorities. The delegate concluded that the applicant was not a person owed protection under the Refugees Convention or the complementary protection provisions of the Migration Act 1958 (Cth) (Migration Act).

Tribunal’s reasons

4    In its decision record (DR) at [57], the Tribunal found that the appellant was “not a credible or truthful witness”, that he had “distorted and fabricated evidence regarding his activities and problems he faced in Sri Lanka” and it did “not accept that he is or ever has been of adverse interest to the Sri Lankan authorities”.

5    The primary judge’s summary of the Tribunal’s reasons is replicated in the appellant’s written submissions and it was relied on by the Minister. That summary is at J[15]-[17]:

15.    … In relation to the trips the applicant had claimed to have taken with his journalist brother to the north of Sri Lanka before dissolution of the ceasefire agreement, the Tribunal did not accept that the applicant could have afforded the time to accompany his brother to the north if he had been working full-time in Colombo. It did not find convincing the applicant's explanation of the tasks he did on these trips or the proposition that the LTTE commanders would have engaged in discussions with a young Sinhalese man who was not in any position of leadership. The Tribunal also did not accept that the applicant was detained by the CID in 2008 on suspicion of involvement with the LTTE, finding his evidence in that regard to be contradictory and unconvincing, and inconsistent with the fact that he was able to leave Sri Lanka shortly thereafter without any difficulty.

16.    The Tribunal accepted that the applicant had worked for an online community radio station in 2009 and 2010 and accepted that he had spoken about political issues and may have criticised the Sri Lankan government. However, the Tribunal found that the applicant had exaggerated the significance and impact of this work. It did not accept that he had been threatened or detained when he returned to Sri Lanka in 2011 due to this involvement with the station or that he was threatened by the High Commissioner or other Sinhalese persons in Australia.

17.    The Tribunal concluded that it was not satisfied that there was a real chance that the applicant would suffer serious harm if he returned to Sri Lanka or that there were substantial grounds for believing that there was a real risk he would suffer significant harm. The Tribunal concluded that the applicant was not owed protection under the Refugees Convention or the complementary protection provisions of the Migration Act.

FCCA

6    The appellant commenced proceedings in the FCCA by way of a show cause application in respect of the Tribunal’s decision. The grounds of the appellant’s amended application for judicial review are set out by the primary judge at J[18] as follows:

1.    The second respondent (“Tribunal”) failed to consider whether there was a real chance the applicant could be subjected to serious harm by reason of imputed membership of the particular social group journalists and media professionals in Sri Lanka.

2.    Further or in the alternative, the Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.

Particulars

The Tribunal failed to consider whether the applicant would face a generalised risk of harm as a perceived journalist or media professional.

3.    Further or in the alternative to 1 and 2, the Tribunal failed to consider corroborative evidence in the form of a report dated 25 October 2011 regarding the Sri Lankan High Commissioner to Australia.

4.    Further or in the alternative to 1, 2 and 3, the Tribunal failed to comply with the requirement under section 425 of the Act to “invite” the applicant to give evidence and present arguments in relation to the issue of whether, upon return to Sri Lanka, the applicant would pursue politics as a career or be a political activist.

7    The primary judge rejected each of these grounds. The appellant did not appeal the primary judge’s rejection of ground 3. A transcript of the proceedings before the Tribunal was in evidence and it is included in the Appeal Book.

Grounds 1 and 2 of the appeal

8    The appellant’s first two grounds of appeal are as follows:

1.    His Honour erred in finding at [22]-[24] that the second respondent (“Tribunal”) was not required to consider whether the appellant could be subjected to harm by reason of imputed membership of the particular social group “journalists and media professionals Sri Lanka”, or be subjected to generalised harm as a perceived journalist or media professional because:

a.    the Tribunal had found that the appellant had not worked with his brother as a journalist in Sri Lanka and that his broadcasting activities in Australia were inconsequential (his Honour's judgement at [22]); and

b.    there was no such claim articulated or squarely arising on the material (at [23]).

2.    His Honour ought to have found that:

a.    establishing a protection claim based upon imputed membership of a group or a perceived trait does not depend upon the claimant establishing he or she is in fact a member of that group or in fact has that trait;

b.    in any event, though the appellant accepted that he had not worked with his brother as a “journalist” in Sri Lanka, the Tribunal accepted the appellant had worked in Australia as a broadcaster for a community radio station; and

c.    by construing the appellant's claims, and its task, too narrowly, the Tribunal had constructively failed to exercise its jurisdiction.

9    These grounds correspond to the first two grounds of review in the FCCA and the primary judge’s reasoning at J[22]-[24] is the primary focus of these grounds. For convenience, J[21]-[24] are as follows (footnotes deleted):

21.    These grounds are related. The applicant contends that the Tribunal failed to consider whether he would suffer harm by reason of imputed membership of the particular social group of journalists and/or media professionals in Sri Lanka, or to consider whether the applicant would be subject to a generalised risk of harm as a journalist or media professional. The applicant relies upon the decision of the High Court in Dranichnikov v Minister for Immigration.

22.    This case is, however, readily distinguishable from Dranichnikov. In Dranichnikov, the Tribunal accepted the applicant’s claims of business activity. As I pointed out to counsel for the applicant in argument, if Mr Dranichnikov’s claims of business activity had been rejected by the Tribunal, or if his business activities had been found to be inconsequential, the outcome in that case would probably have been different. In the present case, the Tribunal rejected the applicant’s claim to have worked with his brother as a journalist in Sri Lanka and found that his broadcasting activities in Australia were inconsequential. As stated at [16] above, the Tribunal found that the applicant had exaggerated the significance and impact of his broadcasting reports in 2009 and 2010, and found that he was not of any interest to the Sri Lankan authorities as a result of those broadcasting activities. The Tribunal also rejected the applicant’s claim that he had received telephone calls from unknown Sinhalese people as a result of his broadcasts. It did not consider that the applicant’s participation in political programmes for community radio stations in Australia between 2012 and 2014 angered the former Sri Lankan government, or that he faced a real chance of harm from them or [that] he received death threats from unknown persons as a result.

23.    I accept the Minister’s submission that there was no “substantial, clearly articulated argument relying upon established facts” that the applicant faced some other form of harm than that which was rejected by the Tribunal, because of his work or participation with community radio stations in Australia. Nor did any such unarticulated argument squarely arise within the principles in NABE v Minister for Immigration (No 2) merely because the Tribunal accepted that the applicant had participated in a community radio station in Australia. If the applicant wished to argue that he would be perceived as a journalist or media professional in Sri Lanka and feared harm based on this perception, he needed to articulate such a claim before the Tribunal. It would seem unlikely that such a claim could succeed, given the Tribunal’s finding at [69] that the community station was not particularly successful and did not have a large international audience. In any event, it was not raised and did not clearly arise on the Tribunal’s own findings, which do not suggest that the applicant has any profile as a journalist or media professional in Sri Lanka.

24.    I reject the suggestion in the applicant’s submissions that the Tribunal required that he be “singled out” for harm. On the Tribunal’s findings, there was no risk of harm to the applicant for any reason. If he wished to claim that he feared harm simply as a member of a perceived group of journalists, separately to his fears from the former Sri Lankan government, then it was for him to articulate this claim to the Tribunal. He did not. Indeed he agreed at the Tribunal hearing that he, unlike his elder brother, was not a journalist.

Appellant’s submissions

10    Counsel for the appellant accepted that the appellant did not expressly in terms make a claim to the delegate or the Tribunal to fear harm because he would be imputed with membership of the particular social group “journalists and media professionals in Sri Lanka”, or that he would be subjected to generalised harm as a perceived journalist or media professional, noting that the appellant was not represented at the Tribunal hearing.

11    Counsel noted that the statement supporting the appellant’s visa application which was received by the Department on 13 May 2014 was headed with the claim that material published by news media, on the internet and by various organisations which report on the Sri Lankan authorities’ persecution of Tamils was relevant to his claims. While that general material dealt with a number of issues, it contained references to: reports in April 2013 concerning arson committed on the Tamil press and an army squad attacking a newspaper office to prevent dissemination of the newspaper; reports from 2010 concerning the disappearance of a contributor to Lanka-e-News and the blocking of that website on the day of the presidential election in January of that year as well as the detention of a news editor and two editorial assistances from Irida Lanka; under the heading “Journalists in grave danger”, material from 2005-2006 and 2008 concerning the stabbing of two journalists and the killing of another. The statement also attached 18 news articles and other materials, many of which related to attacks on journalists and press freedom and the blocking of websites in 2011 and 2012.

12    Counsel referred to passages of the appellant’s statement. Counsel submitted that the appellant made an express claim to be a journalist in his statement as follows (as written, emphasis added):

… Ragapakse brothers started to take the law into their hands and started to intimidate, harass and kill those who worked against them. We all feared that Rajapakse planed to introduce dictatorship rule in the country. This where we started to fear for our life. We had to stop visiting LTTE supports to obtain political opinions personally and the journalists were warned and barred by the government to stop having any connections with the LTTE terrorist in the future. I joined another company and my brother had to lie low in fear of the governments policy of cracking down on those who had direct dealings with the LTTE. As journalists we feared to publish any articles against the government even though [the newspaper] is and was publishing and working against the government.

13    Counsel then referred to the part of the statement in which the appellant dealt with his return to Sri Lanka in 2011 and submitted that, irrespective of what happened in 2002-2007 (referring the appellant’s concession in evidence to the Tribunal that he was not a journalist when he worked with his brother in that period), the appellant made the following claim to be a newsreader (and therefore a journalist) or, in any event, a media professional when he said (as written):

My brother advised me that he could get me job as a permanent newsreader in one of the Radios if I wished. I decided to become a newsreader as I did very well in Australia. I was asked to visit the Radio stations for interviews with the bosses known to my brother.

14    Counsel submitted that the real question arising for determination of the appellant’s claims for protection was not whether the appellant was, in fact, a journalist or just an assistant to his brother in the period 2002-2007 or whether he worked as a newsreader when he returned to Sri Lanka in 2011 or was simply interviewed and then question by authorities because he was seeking that job or whether there were particular stories or actions he had undertaken in Australia that caused him to anger or be targeted by Sri Lankan authorities. Rather, the real question the Tribunal should have asked itself was whether the appellant would be perceived to be a journalist or media professional by those minded to persecute such persons in Sri Lanka and accordingly the primary judge erred (at J[22]) in the basis on which he distinguished the decision in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 from this case. Counsel’s written submissions rely on what he describes as the “foundational proposition” in refugee law that that applicants need not in fact possess a relevant Convention-related characteristic: that it is sufficient that they be attributed that characteristic by their persecutors (see Hathaway JC and Foster M, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014 at 174-175).

15    Counsel noted that the Tribunal did, in fact, accept the appellant’s claim that he worked as a broadcaster in an online community radio station in Australia in 2009-2010 and spoke about political issues (see DR[67]) and that he participated in political programs for community radio in 2012 and 2014 (see DR[81]). The primary judge distinguished Dranichnikov on the basis that the appellant conceded that he was not a journalist, but in fact that was not the case, at least after 2007.

16    In the appellant’s written submissions, he noted that, at J[23], the primary judge held that there was no “substantial, clearly articulated argument relying upon established facts” that the appellant would be perceived to be part of the relevant social group or subjected to the risk of generalised harm as a perceived journalist or media professional. He says, however, that that formulation, which derives from Dranichnikov at [24], was not an exhaustive statement of the circumstances in which a Tribunal would constructively fail to exercise jurisdiction, relying on SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 265 at [79] per Griffiths J. Rather, Dranichnikov at [24] related to a failure to accord natural justice. The appellant also says that the primary judge’s finding that there was no such unarticulated claim “squarely arising” within the principles of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 was unexplained. He submitted that he claimed to have worked as a journalist in Sri Lanka and the Tribunal accepted that he worked as a radio broadcaster in Australia and spoke about political issues. There was no “constructive or creative activity” (see NABE at [58]) required on the part of the Tribunal in order for it to consider a claim that the appellant was at risk of harm if he returned to Sri Lanka because he would be perceived to be a member of the social group of journalists and media professionals or subject to a generalised risk of harm as a perceived journalist or media professional.

17    The appellant submitted that, while the Tribunal found that the appellant’s broadcasts in Australia would not have angered the Sri Lankan authorities, the Tribunal did not, but should have, consider and make findings about whether the appellant would be perceived to be a journalist or media professional on his return to Sri Lanka. Had it done so, it would have been required to take into account the Department of Foreign Affairs and Trade (DFAT) country information report for Sri Lanka dated 18 December 2015 which states that DFAT was aware of a number of attacks against media outlets and journalists in Sri Lanka. I note that this DFAT report is not in evidence.

Minister’s submissions

18    The Minister submitted that the primary judge’s reasons at J[21]-[25] do not reveal error and those reasons were adopted by the Minister. He says that when the appellant’s claims are read together with the Tribunal’s factual findings, there was no basis for it to consider an unarticulated claim that the appellant could have a profile (whether accurate or not) as a journalist or media professional in Sri Lanka. Counsel for the Minister noted that:

(1)    At DR[57], the Tribunal found that the appellant was not credible or truthful and that he distorted and fabricated evidence.

(2)    At DR[58], the Tribunal rejected the appellant’s claim that he worked with his brother as an unpaid assistant or travelled regularly to LTTE controlled areas in 2002-2007.

(3)    While, at DR[67], the Tribunal accepted that the appellant worked in Australia on an online community radio station in 2009 and 2010 and that he spoke about political issues during those programs and may have criticised the government, the Tribunal said that it believed that he exaggerated the significance and impact of his reports and it did not accept that he was detained or threatened when he returned to Sri Lanka in late 2011 because of his involvement with that radio station. At DR[71], the Tribunal characterised the claim that he had been detained in late 2011 because of his broadcasts in Australia or because was suspected of LTTE involvement as “far-fetched and implausible”.

(4)    At DR[69], the Tribunal rejected the appellant’s claims that his reports (in 2009 and 2010) were of concern because the radio station broadcast was on the internet and had a large international audience because it failed after less than a year. This suggested to the Tribunal that the radio station was not particularly successful and it did not have a large international audience.

(5)    At DR[79], the Tribunal did not accept that the appellant received calls from unknown Sinhalese people as a result of his radio programs.

(6)    At DR[81] the Tribunal accepted that the appellant was involved in political programs for community radio broadcasts in 2012 and 2014 and that he participated in dance and drama with political content but at DR[81] and DR[84] the Tribunal did not accept that the appellant was involved in broadcasts which angered the Sri Lankan government or that there was a real chance that he would face serious harm in Sri Lanka at the hands of the former government because of those activities.

19    The Minister submitted that:

(1)    Contrary to the appellant’s submissions, the appellant did not claim to have worked as a journalist in Sri Lanka after 2007. To the extent that he claimed to have worked as a journalist in Sri Lanka in the period from 2002-2007, he explained at the Tribunal hearing that he worked as an unpaid assistant to his brother, and that claim was rejected by the Tribunal as noted by the primary judge at J[22].

(2)    The primary judge was correct to say that if the appellant wished to argue that he feared harm in Sri Lanka as a perceived journalist or media professional, he had to articulate that claim before the Tribunal. Such an unarticulated claim does not “squarely arise” from the facts of his activities in Australia with an online community radio station in 2009 and 2010 as found by the Tribunal. The appellant’s claims were fairly detailed and expressly addressed by the Tribunal; it is not a case where some extra claim arose which would not require “creative activity” on the part of the Tribunal to discern.

(3)    The Tribunal’s findings do not suggest that the appellant had any profile as a journalist or media professional in Sri Lanka.

(4)    The appellant did not ever claim that he would work as a journalist in Sri Lanka and on the Tribunal’s findings there was no risk of harm to the appellant for any reason in Sri Lanka.

Consideration

20    It is important first to note that Dranichnikov is not a case about unarticulated claims. It is a case where the majority of the High Court found that a Tribunal constructively failed to exercise its jurisdiction because it failed to deal with the claim expressly made by Mr Dranichnikov and facts accepted by the Tribunal as explained by Gummow and Callinan JJ at [27]-[28]:

27    The Tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov’s membership of a social group, name, of “businessmen in Russia” was a reason for his persecution and relevantly nothing more. The Tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime and criminals.

28.    It seems to us that had that question been addressed it would in all likelihood have permitted of one only answer, an affirmative one. This is so because the Tribunal accepted Mr Dranichnikov as a witness of credit, and therefore the correctness of his account of his activities, and their climax, the violent assault that he suffered.

21    As the Full Court observed in NABE at [58], [63] and [68]: A judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. It will not depend for its exposure on constructive or creative activity by the Tribunal. Every case must be considered according to its own circumstances.

22    The appellant’s claim in relation to activities between 2002 and 2007 did not relate to any claim that he was a journalist; despite the language in his statement quoted at [12] above, the appellant told the Tribunal that he was not acting as a journalist. In my view, the Tribunal properly understood that his fear was that he was exposed to the risk of perceived association with the Liberation Tigers of Tamil Eelam (LTTE). In the result, the Tribunal did not accept that he worked as an unpaid assistant to his journalist brother or that he travelled regularly to LTTE controlled areas and had contact with LTTE leaders as claimed. Having regard to that finding, there can be no unarticulated claim that the appellant would be perceived to be a journalist or media professional in that period.

23    The appellant framed his claim so as to suggest that the political content of his broadcasts in 2009-2010 and 2012 and 2014 resulted in threats or warnings specific to him from the Sri Lankan High Commissioner in Australia and other Sinhalese persons and that the broadcasts in 2009-2010 resulted in his arrest following his attendance at a radio station for a job interview or detention by the Criminal Investigation Department when he returned to Sri Lanka in 2011. As submitted by the Minister, while the Tribunal accepted that the appellant was involved in broadcasts in Australia in those periods and that they contained political content, it did not accept that they were of such a nature as to result in the claimed threats or warnings or that the claimed arrest or detention occurred upon his return to Sri Lanka in 2011. The claimed basis for Sri Lankan authorities to be aware of the appellant and for the appellant to fear harm as a result was therefore not accepted and, as submitted by the Minister, the appellant made no claim that he would be a journalist or other media professional if he returned to Sri Lanka.

24    While it may be accepted that applicants for protection need not in fact possess a relevant Convention-related characteristic and that it is sufficient that they be attributed that characteristic by their persecutors, there must be a sufficiently clearly discernible claim to that effect which relies on established facts. Had there been before the Tribunal established facts on the basis of which it could be said that the appellant had made a claim of imputed membership of the particular social group or be subject to generalised harm as a perceived journalist or media professional in Sri Lanka which had been “squarely raised”, then it would have been necessary for the Tribunal to consider that claim in the course of which it would have been required to consider the DFAT country report in relation to Sri Lanka dated 18 December 2015 to the extent it detailed risks to such persons.

25    However, in light of the Tribunal’s factual findings identified by the Minister (which are largely unchallenged on the appeal) and its findings concerning the appellant’s credit, the factual predicates necessary to found the alleged unarticulated claim were not established. In my view there was no constructive failure on the part of the Tribunal to discern and consider the unarticulated claims now suggested by the appellant. If the appellant wanted to make such claims, it was for him to articulate them before the Tribunal, albeit that he was unrepresented at the Tribunal hearing. It is not the Tribunal’s obligation “to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy”: see NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], per Allsop J).

26    In my view, the primary judge did not err in rejecting grounds 1 and 2 of the application to the FCCA and accordingly grounds 1 and 2 of the appeal are not made out.

Grounds 3 and 4 of the appeal

27    Grounds 3 and 4 of the appeal relate to the fourth ground considered by the primary judge. Those grounds are as follows:

3.    Further or in the alternative, his Honour erred in finding at [42] and [43] that the Tribunal did not fail to “invite” the appellant to give evidence and present arguments under section 425 of the Act in relation to the issue of whether he would pursue politics or be a political activist upon return to Sri Lanka (“Issue”) because:

  a.    the Issue was “a relatively minor item of evidence”; or

b.    the appellant was on notice of the Issue because it was “subsumed in the general issue of … credibility” or “consistent with … the overarching conclusion” in the delegate's decision.

4.    His Honour ought to have found that the Issue was not immaterial to the Tribunal's decision and was not considered dispositive, if considered at all, by the delegate, and was accordingly “an issue arising in relation to the decision under review”.

28    Section 425(1) of the Migration Act provides that the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.

29    These grounds of appeal allege that the primary judge erred in finding that the Tribunal did not fail to “invite” the appellant to give evidence and present arguments in relation to the issue of whether he would pursue politics or be a political activist upon return to Sri Lanka.

30    The particular part of the Tribunal’s decision which counsel for the appellant sought to impugn on the basis of non-compliance with s 425 was T[88], which states (as written):

The applicant claims that he fears returning to Sri Lanka because he wants to become involved in politics. In light of the applicant's overall lack of credibility and the absence of any evidence of serious involvement in political activities in Sri Lanka in the past, while I accept that the applicant may become involved in politics in a minor way, I do not accept that he will pursue politics as career or that he will a political activist. In any event, as noted above, DFAT advise that ‘political parties and their leaders and supporters can generally operate openly and freely in Sri Lanka today’. In these circumstances, I do not accept that there is a real chance that the applicant will face persecution in Sri Lankan within the reasonably foreseeable future because of his involvement in politics.

31    The primary judge considered the Full Court’s decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at [30] dealing with when the exercise of a statutory power attracts the requirement for procedural fairness and the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [34]-[37] applying those principles in the context of s 425. It is useful to set out SZBEL at [32]-[36] for the whole context (footnotes omitted):

32    In Alphaone the Full Court rightly said:

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”

(Emphasis added.)

33    The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.

34    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

35    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

36.    It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

32    The primary judge then addressed ground 4 at J[39]-[43] as follows (as written, footnotes omitted):

39.    In the present case, the applicant had said that, growing up in Colombo, he had been a UNP supporter and was interested in politics but that his dreams of entering into politics “were shattered of returning back to Sri Lanka in the future”.

40.    In the present case, the applicant contends that the delegate’s decision does not record any consideration given to how the applicant would act and, in particular, whether he would be politically active if returned to Sri Lanka. The delegate’s reasoning appears to have stopped short at finding that the applicant was not a credible witness on that issue and that, while she accepted the applicant’s brother had been a journalist, she did not accept that the applicant worked as a journalist or in a media role.

41.    On review the Tribunal held that, upon return to Sri Lanka, “while [it] accept[ed] that the applicant may become involved in politics in a minor way, [it did] not accept that he will pursue politics as a career or that he will a political activist”. This is said not to have been a matter that had been disputed by the delegate, nor put to the applicant at the Tribunal hearing. The applicant asserts that he may have said that he would have resumed his attempts to find work as a radio broadcaster and that, in that capacity, he would be politically active; or that he may have said that he would not pursue politics because of a well-founded fear of harm. The applicant complains that he was never given the opportunity to give evidence or make submissions on this issue.

42.    I am not convinced that the issue asserted by the applicant was anything more than a relatively minor item of evidence in relation to the applicant’s claim of political persecution by the former government of Sri Lanka. Even if it were an issue (or a sub-issue), it was, in my view, subsumed in the general issue of the applicant’s credibility, which was clearly identified by the delegate. The delegate reached the following conclusion about the applicant’s claims:

I have taken into account that the applicant has a passport that is valid until 2016, and he has travelled between Sri Lanka and Australia lawfully, on his student visa. While I acknowledge that he may be subjected to police checks and questioning to confirm his identity and that he did not have a criminal record or outstanding arrest warrant, apart from official procedures (5.9), I do not accept that the applicant is likely to be a person of concern to the Sri Lankan authorities, if he were to return to Sri Lanka, given his personal and travel history.

In considering the applicant’s migration history, and given the applicant’s delay in applying for a Protection visa, and his subsequent return to Sri Lanka on two occasions, particularly as he has claimed that he left Sri Lanka to evade persecution, is incongruent with a genuinely held fear of persecution, and as he had no other options to remain in Australia, I consider the applicant’s true motive in lodging a Protection Visa application, is not out of a genuine fear of persecution but rather, as an alternative migration pathway to remain in Australia. As discussed above, I have not found the applicant to be a credible witness at his testimony with regard to his claims, and I do not accept the veracity of the applicant’s claims.

43.    In my view, the Tribunal’s conclusion that the applicant would not pursue a career in politics or be a political activist is entirely consistent with both the Tribunal’s earlier findings and the over arching conclusion of the delegate. Given the delegate’s wholesale rejection of the applicant’s claims of past harm and the attribution of a non genuine motive in lodging his protection visa application, the applicant must be taken to have been on notice not only that the credibility of his claims of past harm were in issue but also that his asserted future intentions were in issue.

Appellant’s submissions

33    Counsel for the appellant repeated the submissions set out at J[41]. In relation to his Honour’s finding that the issue was a “relatively minor item of evidence” which was in any event “subsumed in the general issue of the applicant’s credibility” identified by the delegate, counsel submitted that if the Tribunal had accepted that the appellant would enter into politics, in the sense of pursuing it as a career or activity, that was conduct which could give rise to a real chance of serious harm notwithstanding the Tribunal’s claims as to past events and therefore the issue was not immaterial.

34    Further, counsel submitted that it was not an issue subsumed by the delegate’s adverse credibility finding alone because, as observed by Heerey J in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; 166 FCR 483 at [29]:

An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of the applicant’s claims.

35    Counsel submitted that, notwithstanding the delegate’s adverse credibility findings against the appellant, the delegate accepted several aspects of his claims, including his claimed nationality and identity and his claim that his brother was a journalist in Sri Lanka. Counsel says that the delegate also implicitly accepted the authenticity of the photographs he claimed to have been taken in the Northern Province and at a political demonstration in Canberra. Counsel says that the delegate rejected the appellant’s claims as to past events based upon credibility but simply made no finding about whether the appellant would pursue a career in politics or be politically active in the future if he returned to Sri Lanka.

Minister’s submissions

36    The Minister adopted the primary judge’s reasoning in rejecting the appellant’s claim that the Tribunal failed to comply with s 425 of the Migration Act in its finding at DR[88]. The Minister says that, as the delegate found the appellant not to be a credible witness, this was a case where everything he said was in issue before the Tribunal and it did not need to disclose its preliminary reasons or thought processes at the hearing, relying on SZBEL at [47]-[48] as follows (footnotes deleted):

47    First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

48    Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry,

“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

Consideration

37    In the appellant’s statement, he explained that his father had worked in the government sector while the United National Party (UNP) was in power and said (as written):

… We are UNP party supporters and my father had many close associates in the political field, my brother and I became interested in politics from our young days. Many politicians visited my father during weekends and we all sat together to discuss about politics and I developed a liking to enter into politics at a later stage. Even at school I was involved in political discussions and whenever there were political discussions, I was asked to speak at the class and at the assembly as to the future Sri Lanka. … I always dreamt that I would be a Member of Parliament in the time to come. My brother, on the other hand always wished to become a Journalist. …

38    The appellant went on to explain that “as UNP supporters” they never liked the “Rajapakse” brothers, that they “were encouraging people to come forward to bring about a settlement through peace negotiations”, and they “had meetings with LTTE commanders in Jaffna, Vanni, Batticaloa and Trincomalee in order to bring the terrorists to the table for a permanent peace settlement”. The appellant said that he “became interests in entering politics after I gathered the opinion of the Mass as to the permanent peace in Sri Lanka”. The appellant said that, after he relocated to Australia, he “couldn’t stop involving in politics” and his father advised him to stay in Australia until the LTTE was completely wiped out.

39    In the delegate’s decision record, the delegate summarised other aspects of the appellant’s claims, but these aspects concerning the appellant’s political ambitions and motivation for meetings with LTTE commanders in the period before 2007 were not mentioned. The delegate made the findings set out at J[42] and the following sweeping credibility finding (as written):

I have not found the applicant to be a credible witness at his testimony with regard to his claims, and I do not accept the veracity of the applicant’s claims as discussed below. During his interview, the applicant did not appear to be connected to his written claims as he continued to add new claims during the interview process, added and changed his responses in regard to his claims and provided vague general responses to questions, which casts doubt on the overall credibility of his claims. I find that the applicant has not been truthful about the reasons for his claims for a Protection visa, and I conclude that the applicant’s evidence regarding his profile has been enhanced to convince the department that he should be the recipient of a Protection visa.

40    Under the heading “The Tribunal hearing”, the Tribunal relevantly summarised the evidence given by the appellant as follows:

22.    The applicant stated that his fear of returning to Sri Lanka related to three related issues: his ongoing interest in politics and desire to be politically active, his visits to the LTTE controlled areas in the north of Sri Lanka and meetings with LTTE leaders between 2002 and 2007, and his involvement in radio programs and other political activities in Australia.

23.    The applicant said that he had been a member of the junior UNP from the time he left school until he travelled to Australia to study in July 2008. The only specifically linked UNP activity he mentioned during the hearing was attending public meetings at places such as libraries where he spoke about the problems faced by people in the north of the country. He said that his meetings with LTTE leaders and Tamils in the north of the country were not done as a UNP member, but because he wanted to prepare himself for a future in politics.

24.    The applicant said that he had accompanied his journalist brother on trips to the north of Sri Lanka between 2002 and 2007 because he saw it as a good way to get acquainted with the situation and help him to achieve his goal of becoming involved in politics. …

41    DR[22] reflects the following interchange which occurred at the Tribunal hearing (as transcribed):

Tribunal Member:    Ok. And I understand that your claims relate to 2 things, one was a period during which you said you travelled to the north of Sri Lanka with your brother who was a journalist, and the other relates to your involvement with the radio station in Australia, is that correct?

Interpreter:    Yes, that’s correct.

Tribunal Member:    Is there anything else. I mean we will talk in a minute a bit more about those um those 2 claims, but is there anything else that we need to discuss today or is that the essence of your claim?

Interpreter:    My first option was to get into politics and it is basically there where these 2 factors impact considerably because of the political objective.

42    DR[23] and [24] reflects a total of five pages of questions and answers exploring the nature of the appellant’s relationship with the UNP and the purpose that he claimed in assisting his brother of advancing his goal to become involved in politics.

43    Under the heading “Political involvement in Australia pre-December 2011”, the Tribunal sets out the appellant’s evidence concerning his work at the online community radio station between 2009 and 2010, the threats he claimed to have received from the Sri Lankan High Commissioner and death threats which originated in Sri Lanka, his return to Sri Lanka in 2011 and his departure from Sri Lanka in 2012, the events surrounding the interview for a broadcasting job in Sri Lanka and his claims to have been detained, including his release following his father’s contact with a Member of Parliament who was said to have intervened on his behalf.

44    In relation to the appellant’s claim that he was warned by the Sri Lankan High Commissioner in relation to broadcasts the appellant made in 2009 and 2010, the transcript of the Tribunal hearing which is reproduced at AB253 contains the following interchanges (as transcribed):

Tribunal Member:    Ok, so now tell me about the cause you say you got from the High Commissioner?

…

Interpreter:    Ok, so initially “we have told you on a couple of occasions not to talk adversely about the Rajapaksa regime, government”, but now we were admonished, “beware of going back to Sri Lanka because if you’ve got a file compiled with all your details against you and so beware if you are to go back to Sri Lanka”.

…

Tribunal Member:    And the first time he told you to stop the…, stop what you were saying, and the second time he told you that there was a file on you, is that correct?

Interpreter:    Ok. Like, first time, “stop it”, “please stop it”, more politely, and the second time, “look if you are to continue their is … ok, “stop it, if you do not stop it you will face the same consequences that the others faced”.

Tribunal Member:    And you thought that was a threat and not a warning to you because you were in danger?

Interpreter:    I was very fearful because I had already experienced this back home and also I had intentions of being in politics at home so I was very fearful of the future implications…

45    At DR[45], the Tribunal said:

I advised the applicant that I had a number of doubts about his claims, but, even if I accepted them at face value, the UNP was now part of the government in Sri Lanka, he was a UNP supporter and his father had strong connections to the party which suggested that he would not be at risk of harm from the authorities if he returned to Sri Lanka. The applicant responded that the government was not run by the UNP, the Rajapaksa brothers still had considerable power and the police were still the same and he believed that his life was in danger if he returned to Sri Lanka.

This largely reflects the transcript reproduced at AB261, save that it does not wholly reflect the width of the invitation at the conclusion of the Tribunal’s question. It is useful to set out the context of question in its entirety as follows (as transcribed):

Tribunal Member:    … Ok, I still do not understand and it seems to me highly unlikely if you’re of this level of interest to the Sri Lankan authorities and they had a file on you from the Sri Lankan High Commission, it seems to me highly unlikely that you wouldn’t have been arrested at the airport and I don’t understand why having not arrested you at the airport they would arrest you later and I don’t understand why, if you’re of so much interest to them you would be released after a day even though I understand that your father had influence and paid bribes.

Interpreter:    Ok their style in: Sri Lanka if you give money you can be released but then after that if your intention is to kill a person or get rid of a person there is every avenue of being able to facilitate that.

Tribunal Member:    And you think they intend to kill you?

Interpreter:    Yes, yes Namal Rajapaska, Gotabhaya Rajapaksa, Mahinda Rajapaksa ...

Tribunal Member:    Just the Rajapaksas, all the Rajapaksas,

Applicant:    All the Rajapaksas still working.

Tribunal Member:    They may still be working, that doesn’t mean they want to kill you.

Applicant:    They can do anything.

Interpreter:    Ok now I understand you believe that they will try and kill you.

Applicant:     Underworld, if you have money …

Tribunal Member:    Ok I understand what you’re saying. Ok well it does seem to me that even when the Rajapaksas were in power, nobody killed you and your father was able to get you out or your brother out of detention relatively easily on the 2 times that you claim you were detained? And … let me finish … despite having what I would see as the power to have you arrested and not released at the airport when you left, at the airport when you came back, they didn’t. All of these things suggest to me that you were not of great interest to the Rajapaksa’s or anyone else. And just one more thing and then I will be happy to hear your comments. The other thing is I mentioned earlier, you’ve spoken about your family being staunch supporters of the UNP, your father having lots of contacts in the UNP and it seems your father has contacts not just with the UNP but beyond that. The UNP as I understand it is part of the government in Sri Lanka in other words in a more powerful position than before. It seems to me that you would easily be able to obtain even if I accept your claims and I am still considering them, I’ve told you about the problems I have, even if I accept your claims it seems to me that given that the changes that have occurred I don’t understand why the government of Sri Lanka would want to arrest you or harm you now or why they would refuse to protect you.

46    Having regard to this evidence which is before the Court on the appeal, it is clear that:

(1)    The issue of whether the appellant would pursue political office or be a political activist was not considered by the delegate, so that it was not an issue of which the appellant obtained notice by that means.

(2)    The issue of the appellant’s desire to be “in politics” was, however, clearly advanced by the appellant at the hearing before the Tribunal and the Tribunal understood that to have occurred.

47    I do not think that the primary judge erred when he found that the evidence that, growing up in Colombo, the appellant had been a UNP supporter and was interested in politics but that his dreams of entering into politics “were shattered of returning back to Sri Lanka in the future” may properly be characterised as a relatively minor item of evidence. I accept the Minister’s submission that the delegate’s credibility finding put all of the appellant’s claims in issue, and in that sense, the evidence about his dreams of participating in politics was subsumed in that finding, as found by the primary judge. In my view, that is a case such as that envisaged in SZBEL at [47]. The fact that the delegate accepted the appellant’s identity and nationality and did not dispute the authenticity of some photographic evidence provided by the appellant does not change that view.

48    It was only at the Tribunal hearing the appellant made a clear substantive claim to fear harm based on the appellant’s ongoing interest in politics and his desire to be politically active as recorded at DR[22]. It is plain from the transcript that the Tribunal member had, before the appellant raised the issue, thought that the appellant’s claim related only to the period before 2007 when he travelled throughout the north of Sri Lanka and as a result of his involvement with radio stations in Australia.

49    In my view the appellant was given an opportunity at the hearing to raise any argument or evidence which he sought to raise in connection with the issue of his desire to be politically active. The invitation to appear before the Tribunal to give evidence and present argument must be meaningful and cannot be a “hollow shell or an empty gesture”: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [33]. Nonetheless, as has been said many times, the Tribunal is not required to provide “a running commentary upon what it thinks about the evidence that is given”: see, for instance, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; 163 FCR 285 at [88]–[89]. It is for the visa applicant to advance whatever evidence or argument s/he wishes to advance in support of the contention that s/he has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out: see Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at [18] per Gleeson  CJ and McHugh J.

50    The Tribunal Member asked a number of questions which explored the nature of the appellant’s political involvement in the past. While past conduct is not a conclusive predictor of future conduct, the Tribunal was entitled to take that into account in the course of assessing the appellant’s claims.

51    In the course of questioning in connection with concerns he claimed to have based on threats which he claimed to receive from the Sri Lankan High Commissioner following broadcasts the appellant made from the internet community radio station in 2009-2010 (see AB253), he expressed his intention of “being in politics at home”. It was open to him to explain what he meant by that without being prompted by a question from the Tribunal, notwithstanding the inquisitorial nature of the proceeding.

52    The questions at AB261 disclosed the Tribunal’s concerns with the appellant’s evidence and provided an opportunity to the appellant to explain how he would be at risk of harm having regard to his family’s affiliation with the UNP and the changed circumstances in Sri Lanka at the time of the Tribunal hearing in April 2016 which were the subject of country information the substance of which was put to the appellant in the Tribunal Member’s question. At the conclusion of her questions, the Tribunal Member asked the appellant whether there was anything else that he wished to tell her. The appellant essentially restated his case, requesting the Tribunal to consider all the details in such a manner so that it would know that it was unsafe for him to return, that he needed protection and that journalists were at risk in Sri Lanka due to the ongoing influence of the Rajapaksas.

53    In my view it was open to the Tribunal Member to reason as set out in [88]. I do not consider that the primary judge erred in dismissing ground 4 of the application to the FCCA and grounds 3 and 4 of the grounds of appeal are not made.

Conclusion

54    The appeal should be dismissed with costs.

Associate:

Dated:    30 April 2019