FEDERAL COURT OF AUSTRALIA

CAO16 v Minister for Home Affairs [2019] FCA 920

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed on 20 September 2018 is dismissed.

2.    The appellant 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:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court delivered on 31 August 2018: see CAO16 v Minister for Immigration & Anor [2018] FCCA 2387 (CAO16). The primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), to affirm a decision of a delegate of the Minister for Immigration and Border Protection, as the first respondent was then known, not to grant the appellant a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth).

FACTUAL CONTEXT

2    The appellant is a Sri Lankan citizen who arrived at Christmas Island as an irregular maritime arrival on 14 August 2012. He applied for a protection visa on 2 May 2013.

3    The appellant claimed that he feared harm in Sri Lanka due to his Tamil ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and as a failed asylum seeker.

4    As summarised by the primary judge (CAO16 at [3]), the particular incidents or matters upon which the appellant placed particular reliance before the Tribunal were as follows:

a)    his father went missing in 2000 although the [appellant] was unsure of the circumstances in which this occurred;

b)    he has two brothers; one fled to India in 2005, the other lives in Australia;

c)    he cannot live freely in Sri Lanka because of the Sinhalese majority;

d)    since 2006, there has been an army camp near his house where he was regularly stopped, questioned and harassed;

e)    in 2003, his brother assisted in organising an LTTE memorial event and helped with the decorations and used his automobile to assist with transporting goods for the event. His brother was subsequently questioned on two occasions and in 2005 fled to India;

f)    from 2008 to 2009, he was stopped and questioned on his way to work by some officers who were patrolling the area and he was harassed by them;

g)    the [appellant] then moved to Mullaitivu to live with his uncle and he was questioned by the Criminal Investigation Department (“the CID”) about his knowledge of the LTTE and that he was suspected of LTTE involvement because his brother had fled Sri Lanka; and

h)    in February 2012, he moved to Batticaloa to work in his other uncle’s jewellery shop and one day while he was alone in the shop, a group of armed men demanded money and the keys to the jewellery cabinets. He refused and told them to leave. The men became angry and after they left they threatened to come after the [appellant] for not doing what they had asked. He says that the men came back some ten days later and told his uncle that they would kill the [appellant]. The [appellant] claimed that he left Batticaloa and these men were associated with the CID so he could not stay in Sri Lanka.

(Footnote omitted)

5    On 17 February 2014, the Minister’s delegate refused the appellant’s application.

THE TRIBUNAL’S DECISION

6    On 27 February 2014, the appellant applied to the Refugee Review Tribunal, as the Tribunal was then known, for a merits review of the delegate’s decision. In support of that application, the appellant’s registered migration agent lodged submissions with the Tribunal. Sometime thereafter the appellant appeared at a hearing before the Tribunal. At that hearing, he was assisted by his registered migration agent and an interpreter. During the hearing, he made an additional claim that, in 2003, his brother, along with two friends, were abducted. He claimed that the two friends were killed, but that his brother managed to escape. As well, with respect to his earlier claim about the incident in his uncle’s jewellery store (see at [3(h))] above), he added that the men who threatened him were initially interested in why he chose to move from the east to the north of Sri Lanka.

7    On 30 June 2016, the Tribunal affirmed the delegate’s decision.

8    In summary, the Tribunal concluded that the appellant’s evidence was inconsistent and that his oral evidence was “largely speculative”. It also observed that the appellant was, at times, “evasive or incoherent”. It found that the appellant’s inconsistencies were “highly significant” and raised questions about his credibility. It therefore concluded that the appellant was not “a witness of truth”.

9    As for the particular matters or incidents upon which the appellant relied, the Tribunal accepted that his father went missing in 2000, but it did not accept that this had any connection with the appellant being of interest to the authorities in Sri Lanka.

10    The Tribunal also accepted that the appellant would have been stopped at checkpoints or when he passed an army camp or by officers patrolling in particular areas. However, it considered that these events happened to most Tamils, at the time, and it did not accept that these events gave the appellant “a high profile to be of personal or particular interest to the authorities”. Further, having regard to country information which indicated that the security situation in Sri Lanka had “significantly improved”, the Tribunal did not accept that the appellant would be of any interest to the authorities if he were to return to Sri Lanka.

11    While the Tribunal noted and appeared to accept the appellant’s evidence at the hearing that his brother was a tuk tuk driver, that his brother had taken some LTTE members in his tuk tuk and that, in 2003 to 2004, officers of the CID asked his brother to take them to places in his tuk tuk, it did not accept that this involvement gave the appellant’s brother a profile of interest to the authorities. It added the observation that in LTTE-held areas many daily activities involved contact with the LTTE.

12    With respect to the incidents in 2003 to 2004 involving his brother and two friends, while the Tribunal accepted some of those events, it did not accept that they made the appellant’s brother a person of interest to the authorities or that any of those incidents caused the authorities to have an interest in the appellant.

13    The Tribunal accepted the appellant’s claims that in 2006 or 2008, prior to the end of the war, he was stopped, questioned about his involvement with the LTTE and slapped, however, it did not accept that he had a profile which made him of particular interest to the authorities. On this aspect, the Tribunal relied on the appellant’s evidence that the authorities had a low level of engagement with him and that he had no involvement with the LTTE.

14    The Tribunal also accepted that the appellant moved to Mullaitivu because he had a job there and that he was stopped and questioned as he passed the checkpoint, however it again did not accept that this gave the appellant a profile of interest to the authorities. Further, the Tribunal did not accept that the appellant left Mullaitivu due to any fear of harm, finding that this was “an embellishment to his claims”.

15    At the hearing, the Tribunal told the appellant that it found it difficult to accept, as plausible, his claims regarding the incident at his uncle’s jewellery shop. In its reasons, the Tribunal said it did not “accept any aspect of this incident having occurred” and, having regard to its “concerns about the significant inconsistency in his evidence”, it added that it found “his account of the jewellery shop incident [had] become increasingly imaginary as he went along”.

16    Having regard to country information, the Tribunal accepted “that Tamils experience low levels of societal discrimination and harassment in everyday life” in Sri Lanka. However, it found that the appellant’s “overall profile [was] not one that would raise the interests of the authorities in Sri Lanka and accordingly the chance or risk that the [appellant would] be seriously or significantly harmed, including on the basis of his ethnicity or race as a Tamil or … any imputation of a particular political opinion … [was] remote”.

17    As for the appellant’s claims that he feared harm as a failed asylum seeker, the Tribunal accepted that he entered Australia by boat without a visa and that he would probably face questioning at the airport on his return to Sri Lanka. It also accepted that he would probably be charged and may be convicted under Sri Lanka’s departure laws. However, it did not accept that there would be “a real chance that the [appellant would] face serious harm if he were to return to Sri Lanka”. Ultimately, on the basis of its findings that the appellant was of no interest to the authorities, the Tribunal was “satisfied that any risk he is likely to face is one that would be faced by the population generally”.

18    The Tribunal noted that the appellant stated that he is Hindu, but he did not make any claims on the basis of his religion.

19    In conclusion, the Tribunal found that the appellant did “not face a real chance of persecution … if he were to return to Sri Lanka as a failed asylum seeker; nor on any other Convention grounds of actual or imputed political opinion or membership of a particular social group such as a Tamil failed asylum seeker, or [y]oung Tamil male and failed asylum seeker”.

20    It therefore concluded that the appellant did not satisfy the criteria under s 36(2)(a) of the Act, nor was it satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

FEDERAL CIRCUIT COURT DECISION

21    By application filed in the Federal Circuit Court on 27 July 2016, the appellant sought judicial review of the Tribunal’s decision. In that application, he raised the following grounds of review:

1.    The decision of the Tribunal:

(a)    is affected by an error of law; and

(b)    denied the applicant procedural fairness.

2.    I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

22    On 31 August 2018, the primary judge dismissed the appellant’s application.

23    The appellant did not file any written submissions prior to the hearing before the primary judge. However, during that hearing, in the absence of any objection from the Minister, the appellant provided a document entitled “Applicant’s Outline of Submission[s]”. In that document, he outlined the errors he claimed the Tribunal had made in its decision. He was also allowed to make some oral submissions on the same topic (see CAO16 at [25]). In his outline of submissions, he claimed, among other things, that he suffered from post-traumatic stress disorder and that he was unwell at the time of his first interview. He claimed that his ability to address his claims was, therefore, affected by his mental health. After questioning the appellant about this claim and establishing that it, at least partly, related to the hearing before the Tribunal, the primary judge rejected it noting that it was unsupported by medical evidence and that, while the hearing before the Tribunal lasted three hours, the appellant was represented by migration lawyers and there was no evidence that he was unwell or otherwise unable to participate in the hearing (see CAO16 at [26]–[35]).

24    Thereafter, the primary judge considered, in some detail, and then rejected, a number of additional concerns the appellant raised with respect to the Tribunal’s decision (see CAO16 at [36]–[47]). In the course of that consideration, the primary judge concluded that the Tribunal had not committed any jurisdictional error and that the appellant’s first ground of review was, therefore, not made out (see CAO16 at [49]).

25    However, it is to be noted that, in that consideration, the primary judge did not specifically address ground of review 1(b), which alleged a denial of procedural fairness on the part of the Tribunal. I will return to this omission later in these reasons.

26    Unsurprisingly, the primary judge concluded that the second ground of review “clearly” did not raise any jurisdictional error in the Tribunal’s decision.

GROUNDS OF APPEAL

27    The appellant’s notice of appeal filed in this Court on 20 September 2018 raised three grounds of appeal as follows:

1.    The Federal Circuit Court failed to find that:

a.    The Respondent erred in law, with the error being a jurisdictional error, by failing to consider and assess the [appellant’s] claims of being a young single Tamil male from Jaffna the Northern Province of Sri Lanka.

  b.    The respondents failed to give the application procedural fairness

  c.    Decision was irrational.

(Errors in original)

CONTENTIONS

28    The appellant did not file any written submissions prior to the hearing of this appeal. At that hearing, he appeared in person, unrepresented. He was, however, assisted by an interpreter. In oral submissions, he said that he had documents that he would like to submit in support of his application and that he wanted the opportunity to return to the Tribunal. Beyond this request, he did not add anything further of relevance.

29    In the Minister’s written submissions, he began by highlighting an inconsistency between the references in the appellant’s first ground of appeal to his being “from Jaffna the Northern Province of Sri Lanka” and his claims to both the Minister’s delegate and the Tribunal that he was born in Trincomalee in the Eastern Province of Sri Lanka. Furthermore, the Minister contended that in those claims the appellant had only disclosed addresses in Trincomalee, Mullaitivu and Batticaloa and that his “relatively consistent account of his movements to the delegate and Tribunal was that he resided in Trincomalee until he fled to Mullaitivu, returned to Trincomalee, before moving to Batticaloa and then again returning to Trincomalee”. The Minister also noted that the appellant did not “at any stage before the delegate or Tribunal, claim to be ‘from’ the Northern Province, or to have resided in Jaffna in the Northern Province”.

30    The Minister contended that the Tribunal did, however, consider the claim the appellant made to the Tribunal concerning his membership of a particular social group, namely young males from the north east of Sri Lanka and a related claim that he had lived in Mullaitivu for a year. With respect to those claims, the Minister submitted that, while the Tribunal accepted that the appellant lived in Mullaitivu and, while he was there, he was stopped and questioned at a checkpoint, it did not accept that this gave the appellant a profile with the authorities. Consequently, the Minister submitted, the primary judge was correct in finding that the Tribunal had considered the appellant’s claim to have been a member of that social group.

31    With respect to the second ground of appeal, the Minister noted that the Tribunal had invited the appellant to attend a hearing before it, that the appellant had attended that hearing assisted by a Tamil interpreter and his registered migration agent and that the appellant was on notice from the delegate’s decision and the Tribunal’s questioning at the hearing that his credibility was in issue. Additionally, the Minister noted that there was no evidence to suggest that the appellant was unwell at the time of the Tribunal hearing or that he was denied a “real and meaningful” opportunity to participate in that hearing. Accordingly, the Minister submitted that the Tribunal had complied with its obligations under s 425 of the Act.

32    Further on that ground, the Minister submitted that “there was no adverse ‘information’ which the Tribunal was required to put to the appellant [under] s 424A(1) of the Act” and that the Tribunal’s decision was based on the written material before the Minister’s delegate, the written and oral evidence before the Tribunal, the inconsistencies in the evidence as perceived by the Tribunal and its appraisal of country information. Accordingly, having regard to the exceptions set out in s 424A of the Act, the Minister submitted that the Tribunal had complied with all of its procedural fairness obligations under Division 4, Part 7 of the Act.

33    As for the third ground of review, the Minister pointed out that this matter was not raised before the primary judge and thus the appellant required leave to raise it for the first time in this appeal. The Minister opposed that leave being granted as the appellant had not explained why this matter had not been raised below, that it was not particularised and that, in any event, it was devoid of merit.

34    In response to the appellant’s oral submissions, the Minister contended that he was either seeking merits review of the Tribunal’s decision or that he was seeking to raise claims that had already been duly considered by the Tribunal.

CONSIDERATION

Ground of appeal 1(a)

35    As the Minister has pointed out in his submissions (see at [29] above), the appellant did not make a claim to the delegate, or to the Tribunal, that he was “from Jaffna the Northern Province of Sri Lanka”, as this ground of appeal asserts. To the contrary, he claimed to be from the Eastern Province of Sri Lanka and only mentioned having lived in Trincomalee, Mullaitivu and Batticaloa. And even if it were to be assumed that the reference in this ground to Jaffna in the Northern Province is an error, I agree with the Minister’s submissions that the Tribunal did properly consider and duly reject the similar claim the appellant made before it, namely to be a member of a particular social group “as a Tamil failed asylum seeker, or young Tamil male and failed asylum seeker” (see at [19] above). Accordingly, insofar as the Tribunal’s decision is concerned, there is no validity in the error alleged by this ground of appeal.

36    This conclusion applies with even more force with respect to the primary judge’s decision. That is so because the appellant did not raise such a contention anywhere in his grounds of review (see at [21] above) or in his written or oral submissions. The closest he came to doing so was in his written submissions where he alleged that the Tribunal had failed to consider his claim that he was “a member of social group, particular a young male from the north east” (errors in original) (CAO16 at [36]). It will be noted that this claim does not include any reference to his status as a Tamil or to him being a failed asylum seeker. Nonetheless, as has been mentioned above, the Tribunal did consider and reject the similar claim the appellant did put to it. For these reasons, I do not consider ground of appeal 1(a) has any merit.

Ground of appeal 1(b)

37    Ground of appeal 1(b) is substantially identical to ground of review 1(b) before the primary judge. As is mentioned above (at [25]), the primary judge did not specifically address that ground of review in his reasons. This omission may be explained by the fact that, despite having been given leave to amend his application (see CAO16 at [22]), the appellant did not provide any particulars of that ground of review. As well, he does not appear to have adverted to it anywhere in his written or oral submissions to the primary judge (see CAO16 at [36], [39], [45] and [46]; and at [25], respectively).

38    This ground of appeal is similarly devoid of particulars. Without such particulars, it is almost impossible to discern the errors to which the appellant is referring. Nonetheless, insofar as the primary judge is concerned, it is clear from her Honour’s reasons that this ground of appeal has no merit. With the acquiescence of the Minister’s counsel, her Honour allowed the appellant considerable liberties in providing his written submissions at the hearing and in raising matters that were not apparent from his grounds of review. The latter included the suggestion the appellant appeared to be making in his written submissions that he was mentally unwell during the Tribunal hearing. Her Honour examined that suggestion in some detail and then rejected it (see at [23] above). Apart from these positive manifestations, there is no indication elsewhere in the primary judge’s reasons that provide any support for the contention made by this ground of appeal that her Honour denied the appellant procedural fairness.

39    Insofar as the Tribunal is concerned, I accept the Minister’s submissions which describe how it complied with its procedural fairness obligations under the Act (see at [31]–[32] above).

40    For these reasons, I do not consider ground of appeal 1(b) has any merit.

Ground of appeal 1(c)

41    This ground of appeal suffers from the same defect as ground of appeal 1(b) above. It is expressed in the most general of terms and is entirely devoid of particulars. It is therefore impossible to know why the appellant claims the primary judgment, or the Tribunal’s decision, was “irrational”. Moreover, as the Minister has pointed out (see at [33] above), no such allegation was raised before the primary judge, at least with respect to the Tribunal’s decision. It follows that the appellant requires leave to raise this alleged error for the first time in this appeal. Given its broad and unparticularised terms, I do not consider it is in the interests of justice to grant that leave.

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

ORDERS

43    The Court orders that:

1.    The notice of appeal filed on 20 September 2018 is dismissed.

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

Associate:    

Dated:    14 June 2019