FEDERAL COURT OF AUSTRALIA

ANG16 v Minister for Immigration and Border Protection [2019] FCA 738

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

(revised from transcript)

BEACH J:

1    On 24 January 2019, a judge of the Federal Circuit Court dismissed an application for judicial review challenging the decision of the Administration Appeals Tribunal made on 10 February 2016. That decision affirmed a decision of a delegate of the first respondent (the Minister) not to grant a protection visa (the visa) to the appellant.

2    By notice of appeal filed on 14 February 2019, the appellant has appealed the primary judge’s judgment on two un-particularised grounds expressed in the following terms:

1.    Applicant thinks the order, which is based on the application has a question of law and it should be investigated.

2.    Applicant has provided lot of information and supporting documents for [his] protection Visa application. Applicant believes this information was not considered properly and not granted a fair order.

3    The expression of these grounds of appeal is problematic to say the least. But in any event, for the reasons that I will now explain I would dismiss this appeal.

4    The appellant was born in 1989 and is a citizen of Sri Lanka.

5    The appellant arrived in Australia as an unauthorised maritime arrival on 8 August 2012. He applied to the Minister’s Department for the visa on 13 December 2012.

6    The appellant claimed that he was born and raised in the Kilinochchi district in Sri Lanka. He worked in the building industry as well as in a shop selling bicycle parts. The appellant and his family were displaced during the war and he lived in different places, including the Mullaitivu district from September 2008 until 20 April 2009, the Ramanathan camp in the Vavuniya district from April to December 2009 and in the Kilinochchi district from December 2009 until his departure to Australia in 2012. The appellant had six siblings; however, one brother was forcibly taken by the Liberation Tigers of Tamil Eelam (LTTE) in 2009 and has not been seen since. Four of the appellant’s remaining siblings lived in Sri Lanka, and one sibling resided in Australia after being granted refugee status.

7    The appellant claimed to fear harm from the Sri Lankan authorities who suspected him of involvement with the LTTE. The appellant was harassed and questioned by the Sri Lankan authorities after his brother was forcibly taken by the LTTE on 2 February 2009. Approximately one month after the appellant’s 2009 return to the Kilinochchi district he was taken to a Sri Lankan army base and interrogated about the whereabouts of his brother who had been taken by the LTTE. Following the appellant’s release, he was apparently required to report to the authorities at least once a week. On each occasion he was apparently asked the same questions and was detained for up to two hours. According to the appellant, this became very disruptive to the point that he could no longer work.

8    The appellant feared that if he returned to Sri Lanka he would be interrogated and harmed by the Sri Lankan army due to being a suspected LTTE sympathiser and because he was a Tamil from the North who had left the country illegally. The appellant also claimed that he and his family faced difficulty in practising their Hindu religion, because Buddha statues had been placed in their local temple and they found it difficult to pray.

9    A delegate of the Minister refused to grant the visa on 20 December 2013.

10    On 3 January 2014 the appellant applied to the Tribunal for a review of the delegate’s decision and appointed a registered migration agent as his representative and authorised recipient. On 21 January 2016 the appellant, through his representative, provided the Tribunal with updated information, including that another one of his brothers had fled to Switzerland after being questioned by the Criminal Investigation Division of Sri Lanka (CID).

11    The appellant and his representative participated in a Tribunal hearing on 27 January 2016. The appellant confirmed at the hearing that his brother had applied for refugee status in Switzerland, but was yet to be recognised as a refugee.

12    On 10 February 2016, the Tribunal affirmed the delegate’s decision.

13    The Tribunal’s reasons record that at the hearing it discussed with the appellant his claims for protection and relevant country information. During the hearing, the Tribunal put inconsistencies in the appellant’s evidence to him for comment. In particular, the Tribunal expressed reservation about the appellant’s claim that he was of interest to the authorities, given his evidence that they had done no more than question him and require him to sign in every week.

14    The Tribunal considered the appellant’s claim at the hearing that the Sri Lankan army and CID looked for him immediately following his departure from Sri Lanka in July 2012. It expressed significant concern that this information was not contained in the appellant’s 13 December 2012 statutory declaration provided to the Minister’s Department. The Tribunal also noted that the appellant’s claim was inconsistent with country information. Further, the Tribunal observed that the appellant’s oral evidence changed towards the end of the hearing, in which he stated that “even though the authorities did not inquire about him in 2012, they will inquire when he returns”.

15    The Tribunal accepted that the appellant was a Tamil of Hindu religion from North Sri Lanka, and that his brother was abducted by the LTTE. The Tribunal also accepted, as I have said, that another one of his brothers was granted refugee status in Australia, and that another brother had sought asylum in Switzerland.

16    But in light of the inconsistencies in the appellant’s evidence and on the basis of the country information discussed with him at the hearing, the Tribunal found that the appellant ceased to be of interest to the Sri Lankan authorities shortly after January 2010. The Tribunal did not accept that after about January 2010 the appellant was required to report to the police weekly, or that the Sri Lankan army’s questioning had significantly impacted on the appellant’s ability to work and earn a living. The Tribunal did not accept that the appellant was ever threatened or otherwise harmed by the authorities because they believed he knew the whereabouts of his brother taken by the LTTE, because they suspected him of LTTE involvement, or for any other reason. The Tribunal found that any questioning of the appellant after January 2010 was part of the generalised questioning and monitoring of Tamils in the North, which had since ceased.

17    The Tribunal considered but did not accept the appellant’s claims that he was unable to practise his Hindu religion in Sri Lanka. It found the appellant’s evidence of the hardship his family had encountered in their worship ‘evasive’ and ‘unconvincing’, and did not accept that any discomfort they experienced constituted serious or significant harm.

18    Further, as a failed asylum seeker, the Tribunal found that whilst persons suspected of committing serious crimes may attract the adverse interest of Sri Lankan authorities, the appellant did not share that profile. The Tribunal also found that whilst the appellant would be charged for leaving Sri Lanka illegally, he would only be subject to a fine or detained for a brief period. The Tribunal was satisfied on the evidence before it that he and his family would have the capacity to pay any fine.

19    In summary, the Tribunal did not accept that the appellant met the refugee criterion and it also determined that complementary protection was not warranted.

20    As I have said, the primary judge dismissed the appellant’s application for judicial review.

21    Now as I have said, by his notice of appeal the appellant alleges two errors, but the grounds of appeal are expressed in problematic terms to say the least.

22    I would also note that before the primary judge the appellant raised two equally problematic grounds of review as follows:

The decision of the Tribunal:

a)    is affected by an error of law; and

b)    denied the applicant procedural fairness.

23    In my view the appellant has failed at either level to properly articulate or even identify any jurisdictional error. Moreover, having considered the Tribunal’s reasons, no jurisdictional error is apparent to me.

24    There is little basis to assert that the Tribunal applied the wrong legal test. It is clear from the Tribunal’s decision that it understood its statutory task and the particular criteria it was bound to consider. The Tribunal correctly set out the tests for “well-founded fear of persecution” and “real risk of significant harm” and made findings in line with ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth). Further, it would appear to have addressed all of the appellant’s claims. In my view the primary judge correctly found that there was no error on the part of the Tribunal in the statement of the applicable legal principles or in the application of those principles.

25    Further, there is nothing in the Tribunal’s reasons which suggests that it failed to accord procedural fairness to the appellant or failed to comply with any of the statutory procedures required by Division 4 of Part 7 of the Act. Further, the primary judge was not in error in finding that the Tribunal applied such provisions in a way that was fair and just.

26    As the appellant has failed to identify any appealable error on the part of the primary judge or any jurisdictional error on the part of the Tribunal his appeal will be dismissed with costs.

Associate:

Dated:    22 May 2019