FEDERAL COURT OF AUSTRALIA

ANN16 v Minister for Immigration and Border Protection [2019] FCA 817

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed on 9 November 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

1    This is an appeal from a judgment of the Federal Circuit Court delivered on 19 October 2018 (see ANN16 v Minister for Immigration & Anor [2018] FCCA 2927). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the Minister, the first respondent, to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

FACTUAL CONTEXT

2    The appellant is a Sri Lankan citizen of Tamil ethnicity. He entered Australia as an unauthorised maritime arrival on 20 June 2012.

3    On 27 November 2012, assisted by a registered migration agent, he made an application for a protection visa in which he claimed that, while operating a hardware store in his home town, he had been harassed by members of the Sri Lankan Army who took items from his shop without payment and made threats that he would be detained if he made any complaint about their conduct.

4    The appellant also claimed that, in May 2012, he was approached by masked men who he believed were from the Sri Lankan Criminal Investigation Department (CID). He claimed that they demanded materials from his store and used his previous supply of goods to shops within Liberation Tigers of Tamil Eelam (LTTE) controlled areas in support of their demands. The appellant claimed that he fled Sri Lanka within 15 days of this event occurring as he feared for his life.

5    Finally, the appellant claimed that he was also at risk because he supported a member of the Tamil National Alliance (TNA) during elections in Sri Lanka.

6    On 10 August 2013, the appellant’s migration agent provided detailed submissions to the Minister’s delegate. Those submissions contained a further claim that the appellant had been summoned to an Army camp, assaulted and had death threats made against him.

7    On 8 May 2014, the Minister’s delegate refused the appellant’s visa application.

8    On 5 June 2014, the appellant applied to the Tribunal for a merits review of the delegate’s decision. The appellant attended a hearing before the Tribunal on 15 February 2016.

9    On 23 February 2016, the Tribunal affirmed the delegate’s decision.

10    On 11 March 2016, the appellant made an application to the Federal Circuit Court for judicial review of the Tribunal’s decision. He filed an amended application on 4 September 2017.

11    As mentioned above, the primary judge dismissed the appellant’s judicial review application on 19 October 2018.

GROUNDS OF APPEAL

12    The appellant’s notice of appeal filed in this Court on 9 November 2018 sets out the following three grounds of appeal:

1.    The Tribunal has not assessed the appellant’s integer claims to being a supporter of the TNA or his social status as a Tamil Businessman. The Tribunal only made a finding that the appellant had no anti-Government of pro- LTTE political opinion. The learned judge erred in holding with the Tribunal that it did assess the above claims. (Reference is drawn to paragraph 47 of the reasons for judgement)

2.    The learned judge erred in holding with the Tribunal that the debt owed to the appellant by the Army was written off and therefore the appellant had not encountered any difficulty. This was despite the appellant had closed the business. The learned judge erred in his finding that there was nothing illogical and irrational about the impugned finding and it was open to the evidence before the Tribunal.

3.    The learned judge erred in his finding that there was no breach of sections 424A or 424AA occurred in which the Tribunal addressed the appellant’s claims. The Tribunal obliged to give an opportunity to the appellant to comment its concerns and made an adverse decision within few days of the hearing. Such action by the Tribunal was arbitrary and breach of procedural fairness. The learned judge erred in making an illogical finding that the applicant was not entitled to a minute by minute disclosure of the Tribunal’s consideration of issues as and when they may have arisen. (Reference is drawn to paragraph 59 of the reasons for judgment).

(Errors in original)

THE TRIBUNAL’S DECISION

13    The Tribunal did not accept that the appellant was a person of interest to the authorities because he sold goods in LTTE-controlled areas during the civil war. As well, the Tribunal did not accept that the appellant was threatened by the CID in May 2012. It found that the appellant’s evidence on these matters was vague.

14    While the Tribunal accepted that the Army owed a debt to the appellant and that he may have been mistreated when he attempted to recover that debt, it concluded that the debt had already been written off as a bad debt and, as a result, that the appellant would not seek repayment of that debt on his return to Sri Lanka.

15    With respect to the suggestion in one of the appellant’s letters of support that he may be at risk of harm from creditors of his hardware business, the Tribunal observed that the appellant gave evidence at the hearing that his hardware business did not owe any money. As a consequence, the Tribunal concluded “that the [appellant did] not have a real chance of serious harm or a real risk of significant harm for this reason”.

16    Noting that same letter of support mentioned that false charges may be brought against him if he were to return to Sri Lanka, the Tribunal asked the appellant to clarify what was meant by this statement. In response, the appellant stated that he “was unaware of any charges, false or otherwise”. The appellant did, however, refer to “the possibility that he may be accused of supporting the LTTE by providing goods in the past to shops in areas under their control”. As mentioned above, the Tribunal considered the claim regarding the appellant’s provision of goods to shops within LTTE-controlled areas and did not accept that the applicant would be harmed for this reason.

17    As for the appellant’s initial claim that he supported the TNA and his clarification of this claim that a local TNA member was a customer of his hardware store, the Tribunal noted that the appellant had given evidence at the hearing that he did not fear harm for either of these reasons. Accordingly, it found “that the [appellant did] not have a real chance of serious harm or a real risk of significant harm for this reason”.

18    Having regard to country information, the Tribunal found that the appellant did not face a real chance of serious harm because he is a Tamil male or because of any imputed anti-government sentiment or because he was a businessman. It also found that he would not face a real risk of significant harm in Sri Lanka because he was a failed asylum seeker.

19    The Tribunal accepted that the appellant would likely be charged under the Immigrants And Emigrants Act 1948 (Sri Lanka) and detained briefly owing to his illegal departure from Sri Lanka. However, it found that he would ultimately be fined and that he would be able to pay that fine. The Tribunal observed that any treatment the appellant would likely receive upon his return to Sri Lanka would be the same as that faced by any other person who had breached the illegal departure laws.

20    The Tribunal therefore concluded that the appellant was not a refugee within the meaning of s 36(2)(a) of the Act and was not entitled to complementary protection under s 36(2)(aa).

THE PRIMARY JUDGMENT

21    In his amended application to the Federal Circuit Court, the appellant raised the following six grounds of review:

1.    The Tribunal fell into jurisdictional error by not assessing the applicant’s integer claim of being a Tamil Hindu businessman from East of Sri Lanka who was associated with the LTTE and had a political persuasion contrary to the Sri Lankan government.

2.    The Applicant further claimed that he supported the TNA. The Tamil National Alliance- Political Party supported the Tamils and against the Sri Lankan government. (CB 53 & CB171). Therefore the applicant has a political opinion, which was not assessed by the Tribunal which amounts to jurisdictional error.

3.    The Tribunal’s finding that the debts owed to the applicant by the SLA ( Sri Lankan Army) and STF ( Sri Lankan Special Task Force) for goods provided to them was written off and hence the applicant will not face persecutory treatment is a pure supposition not supported by evidence. In the alternative, any such evidence if any was based on the fact that the applicant was mortally fearful to confront the SLA and the STF due to his profile.

4.    The actions of the SLA and STF, the military arms of the Sri Lankan government of denying the applicant his due was tantamount to denying the applicant his subsistence under Section 91R which amounts to persecutory treatment.

5.    The applicant was unrepresented before the Tribunal and has not afforded procedural fairness and the Tribunal fell into jurisdictional error by not providing the applicant an opportunity to comment its concerns and made an adverse decision within few days of the hearing.

6.    The Tribunal erred in its construction of the phrase “intentionally inflicted” as it fell into Jurisdictional error because it only considered whether there was an “actual, subjective, intent” to cause harm to the applicant ( the harm being exposure to poor prison conditions) and failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw consequences of their actions. ( SZTAL –V-Minister for Immigration and Border Protection {2016} FACFC 69- Subject to High Court Appeal – S272/2016). In the alternative the Tribunal fell into jurisdictional error by finding that it does not accept the authorities are intentionally seeking to harm by placing the applicant in poor prison condition. ( CB 279 paragraph 113)

(Errors in original)

22    With respect to grounds 1 and 2, the primary judge found that the Tribunal’s reasons comprehensively dealt with each one of the appellant’s claims (at [19]–[22] of the Tribunal’s reasons) that he was a Tamil businessman associated with the LTTE and that he had supported the TNA.

23    With respect to the contentions made in grounds 3 and 4 that the Tribunal’s findings concerning the appellant’s business debts were “illogical and irrational and ‘simply not open on the evidence’”, the primary judge agreed with the Minister’s submissions that the Tribunal’s findings “that the [appellant] had written off the debt flowed logically from the matters which were set out at [58]-[59]” of the Tribunal’s reasons.

24    The primary judge found that ground 5 had not been made out as the Tribunal “was not required to give the [appellant any] advance warning of an adverse finding unless it was obviously not open on the materials before [it]”.

25    Finally, the primary judge found that ground 6 must fail in light of the High Court’s decision in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34.

CONTENTIONS

26    The appellant did not file any written submissions. However, at the hearing of this appeal, with the assistance of an interpreter, he contended that his claims that he had supplied goods to the Special Task Force needed to be reconsidered. He also reiterated his claims regarding the difficulties he would face if he were to return to Sri Lanka.

27    In his written submissions, the Minister addressed each of the appellant’s grounds of appeal in turn. On the first ground, he submitted that, “[c]ontrary to the appellant’s assertion, the Tribunal did consider whether he was at risk of harm” due to his association with the TNA and it rejected that claim because of the evidence the appellant gave that he did not fear harm because he had sold paint to a local TNA member, or because of any imputed support for the TNA.

28    As for the appellant’s claims that he would be at risk because he was a Tamil businessman, the Minister submitted that the Tribunal’s reasons “were logical and open on the evidence before it and that the primary judge was correct [in finding] that no [jurisdictional] error had been made out”. The Minister noted that the Tribunal considered this claim (at [81] of its reasons), but did not accept that the appellant would be harmed for this reason.

29    With respect to the second ground, the Minister submitted that the appellant had misconstrued the Tribunal’s reasons. He contended that the Tribunal had accepted that the appellant may have been mistreated when he attempted to collect the debt and noted his claims that his business experienced financial difficulties due to the non-payment of debts. Nonetheless, the Minister contended, the Tribunal found that the appellant would not attempt to collect that debt upon his return to Sri Lanka. He submitted it was open to the Tribunal to reach this conclusion on the evidence before it.

30    The Minister submitted that the appellant’s third ground was disposed of by the High Court’s judgment in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9]. Specifically, that the primary judge was correct in finding that the Tribunal was not required to explain its thought processes before making a decision where the information relied upon did not give rise to any obligations under s 424A of the Act. In any event, the Minister submitted that the appellant had not identified the piece of information which gave rise to this obligation.

CONSIDERATION

31    The Minister’s submissions should be accepted. With respect to the first ground of appeal, having regard to the primary judge’s review of the Tribunal’s reasons in respect of the appellant’s claims that he would be at risk owing to his association with the TNA or to his status as a Tamil businessman, I am satisfied that the Tribunal carefully considered those claims and the primary judge was correct in finding that no jurisdictional error had been made out in that consideration.

32    As for the second ground of appeal, having regard to the primary judge’s reasons (at [50]–[53]) with respect to the Tribunal’s treatment of the debt owed by the Army, I am satisfied that the primary judge was correct in concluding that there was no illogicality or irrationality in the Tribunal’s finding that the appellant had written off that debt.

33    The third ground of appeal raises an issue concerning the Tribunal’s compliance with ss 424A and 424AA of the Act. Those sections require the Tribunal to give “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”. It should be noted that the “information” to which those sections relate “does not encompass the tribunal’s subjective appraisals, thought processes or determinations” (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). Consequently, the primary judge was correct in finding that the Tribunal was not required to explain its thought processes before making its decision except where its decision was not open on the materials before it.

CONCLUSION

34    For these reasons, I do not consider that the appellant has demonstrated any error in the primary judge’s decision. His notice of appeal must therefore be dismissed with costs.

35    The orders will be that:

1.    The notice of appeal filed on 9 November 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

Associate:    

Dated:    31 May 2019