FEDERAL COURT OF AUSTRALIA
NSD 596 of 2019
Date of judgment:
New South Wales
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Solicitor for the First Respondent:
Mr A Keevers of Sparke Helmore Lawyers
Counsel for the Second Respondent:
The Second Respondent filed a submitting notice save as to costs
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
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.
1 The appellant appeals from a judgment of the Federal Circuit Court delivered on 29 March 2019 dismissing his application for judicial review of a decision of the second respondent (the Tribunal) which affirmed a decision of the delegate of the Minister to refuse him a protection visa.
2 For the following reasons I would dismiss his appeal.
3 The appellant is a citizen of Sri Lanka of Tamil ethnicity and Hindu faith. He arrived on Christmas Island as an irregular maritime arrival on 7 July 2012. On 26 November 2012 he applied for a Protection (Class XA) visa. This was refused by a delegate of the Minister on 13 March 2013. The appellant then lodged with the Tribunal an application for review of that decision. On 9 November 2015, and after a protracted procedural history that is best left undeveloped, the Tribunal affirmed that decision.
4 At this point let me elaborate further on the appellant’s claims and the Tribunal’s disposition thereof.
5 In a statutory declaration dated 1 November 2012, the appellant advanced the following claims.
6 He said that he had experienced harm as a result of the Sri Lankan civil war at the hands of both the Sri Lankan Army (SLA) and Liberation Tigers of Tamil Eelam (LTTE). In particular he said that in or about 1998 a relative had been abducted and killed by government forces. The official cause of death was listed as an “accidental death in the clash between the security forces and terrorists”. Further, he said that in 2001 the SLA rounded up people in the appellant’s area on suspicion of collaboration with the LTTE. He claimed that he was interrogated and beaten. Further, he said that in 2004 he was twice taken by the SLA for questioning and beaten.
7 The appellant also claimed that in April 2012, several years after the cessation of the Sri Lankan civil war, he was asked to assist in campaigning for the “Tamil Makkall Viduthailai Pulikal” (TMVP). Apparently the TMVP was not respected in the appellant’s village. The appellant said that he knew that if he did not assist, he would be tortured or killed, and so he fled.
8 Before the delegate, the appellant advanced a claim that in 1990 the SLA had occupied the appellant’s house in order to establish a base of operations from which to combat the LTTE.
9 Further, in a further statutory declaration dated 6 September 2013 the appellant claimed that the first occasion on which he was abducted in 2004 occurred in either August or September, and the second occasion was 20 to 25 days following his release. He also claimed that following his return to Sri Lanka from Saudi Arabia, the precise date of which was unclear, the LTTE had approached him and demanded 50,000 rupees. The appellant’s family settled with the LTTE by giving 20,000 rupees. Further, he claimed that in August 2013 government representatives attended the appellant’s family home in Sri Lanka and informed his family that they would be returning his occupied land, with compensation. But apparently three SLA officers also attended the appellant’s family home demanding to know from the appellant’s wife whether he had told the Australian Government that the SLA was occupying his land. Further, he said that he was asked to campaign for the TMVP at a meeting at the local Hindu temple on 18 May 2012. Approximately two weeks later, a white van appeared outside the appellant’s house, which caused him to run away. He also said that roughly a week following the appellant’s departure from Sri Lanka, the authorities attended the appellant’s family home looking for him.
10 Further, in written submissions from the appellant’s representative it was said that the appellant claimed to fear harm in Sri Lanka on account of his Tamil ethnicity, his imputed political opinion, his avoidance of the TMVP in helping them in their election campaign and refusing to give the LTTE supplies from his place of work, and his membership of a particular social group being a returning failed asylum seeker.
11 Now I note that before the Tribunal the appellant abandoned his claims to fear harm on the basis of having an imputed political opinion in support of the LTTE, opposing the LTTE, or on the basis of having any link with the LTTE. The appellant also told the Tribunal that there were no longer issues involving his land dispute with the SLA.
12 The Tribunal expressed concern regarding the appellant’s credibility in respect of a number of his claims, noting that the appellant’s evidence was both “vague and to a degree inconsistent” in relation to his claims. The Tribunal referred to the appellant’s claim to fear harm on the basis that he had refused to assist the TMVP in the 2012 election and his claim to have subsequently gone into hiding. But the Tribunal found the appellant’s evidence to be “confusing and lacking in clarity” and “vague”. The Tribunal was not satisfied that the appellant’s claims in this regard were credible, noting the appellant’s concession that he had deliberately failed to mention the relevant TMVP claim in his entry interview. On the basis of the evidence and its adverse credibility findings, the Tribunal rejected the totality of the appellant’s claims to fear harm from the TMVP.
13 Further, the Tribunal did not accept on the appellant’s evidence or the country information before it that he would be at risk of harm on the basis of his Tamil ethnicity were he to return to Sri Lanka. The Tribunal accepted the appellant’s claims of his past detention by the SLA in 2001 and 2004, but did not accept that the appellant would face future harm from the SLA in North-East or East Sri Lanka on the basis of his ethnicity. Further, it found that he would be able to relocate within Sri Lanka if required.
14 Further, the Tribunal accepted that the appellant would be charged upon return to Sri Lanka pursuant to the Immigrants and Emigrants Act 1949 (IE Act) by reason of his unlawful departure. And the Tribunal also accepted that the appellant may be detained in jail for several days, pending a determination on whether he would be granted bail, and that jail conditions in Sri Lanka were poor. But the Tribunal found that the appellant did not have a profile that would bring him to the adverse attention of the Sri Lankan authorities and that the risk for the great majority of returnees being subject to torture or mistreatment was low. Further, the Tribunal found that the enforcement of the IE Act in respect of the appellant’s unlawful departure would be “the nondiscriminatory enforcement of a law of general application intended for the legitimate state purpose of border control”.
15 Further, the Tribunal considered the appellant’s submission that the protracted nature of the Tribunal proceedings had caused the Tribunal proceedings to have “miscarried”, but it was not satisfied that this was so.
16 Generally, the Tribunal concluded that the appellant did not have a real chance of suffering serious harm for the reasons claimed were he to return to Sri Lanka. The Tribunal then considered the complementary protection criterion, finding that the appellant did not face a real chance of suffering significant harm were he to return to Sri Lanka. Accordingly, the Tribunal affirmed the decision under review.
17 As I say, the appellant then made an application for judicial review but this was dismissed by the primary judge. For present purposes it is not necessary to detail his reasons.
18 The appellant in the present appeal before me has advanced two grounds of appeal. It is convenient to deal with each in turn.
19 The appellant contends that the “Immigration Assessment Authority”, which I take to be a reference to the Tribunal, failed to properly consider the appellant’s claims pursuant to ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act).
20 This ground is at such a level of abstraction that it does not properly identify any error. In any event there is nothing in it. The Tribunal in a very lengthy set of reasons (29 pages of single spaced and 10 point typing), perhaps more than is usually necessary, discussed in great detail all of the appellant’s claims (some of which were abandoned) in the context of the said statutory provisions.
21 In this regard, the Tribunal did not accept the appellant’s claims in relation to the TMVP as credible. On this basis the Tribunal rejected the appellant’s claims that stemmed from his claim to fear harm from the TMVP. Further, on the basis of country information before it, the Tribunal did not accept that the appellant would face harm on the basis of his ethnicity. Further, the Tribunal did not accept that the treatment the appellant may face upon return to Sri Lanka by reason of his contravention of the IE Act would constitute either serious or significant harm, within the meaning of the Act. In my view there was no failure by the Tribunal to properly consider his claims.
22 It is also questionable whether the appellant raised an assertion of such generality before the primary judge, but no matter.
23 During the hearing I sought further clarification from the appellant of his precise complaint under this ground. At one stage he suggested that the primary judge had refused to accept relevant material sought to be tendered. Now a few points. First, neither ground 1 nor ground 2 raise such a complaint. Second, there is nothing in the primary judge’s reasons suggesting that the appellant had been denied such an opportunity. Third, the type of material that he suggested he sought to tender was not such as could have been considered in any event by the primary judge in determining whether the Tribunal had made a jurisdictional error. Fourth, there was a suggestion that some of this material may have related very generally to the TMVP. But this would have gone nowhere as the Tribunal did not accept the appellant’s claims because of a lack of credibility dealing with details personal to the appellant.
24 The appellant then shifted his focus to assert that the Tribunal had refused to accept TMVP material. But in my view there was nothing in this complaint.
25 I reject the first ground of appeal.
26 This ground is expressed in the following terms with particulars:
The Tribunal failed to comply with s 424A or 424AA of the Migration Act 1958 (“the Act”) in respect of information that it considered would be there reason or part of the reason for affirming the decision under review.
The Tribunal took into account information that had been given by the Applicant orally to the Minister’s Department at a “maritime arrival interview” in determining whether the Applicant was a truthful witness. That information was not put to the Applicant in accordance with s 424A or 424AA of the Act.
In light of the decision of Sundberg J in Minister for Immigration and Citizenship v Chamnam You  FCA 241 (Chamnam) and other authorities, it is respectfully submitted that the Tribunal has an obligation under section 424A to give particulars of information is subject to an exception in subsection 424A(3)(b) in that the requirement to give particulars does not apply to information that the applicant gave to the Tribunal for the purpose of the application for review. Ii is respectfully submitted that since the applicant never provided the Decision record of the DIBP or his entry interview details to the Tribunal, in the present circumstances has an obligation to provide clear particulars of information Tribunal considered would be the reason, or part of the reason, for affirming the decision under review.
27 The appellant contends in substance that the primary judge fell into error by failing to hold that the Tribunal had breached its statutory obligations by failing to put to the appellant adverse information contained in his arrival interview.
28 Now the appellant does not identify the precise information that he contends ought to have been put to him. Further, and contrary to what is said in the particulars to this ground, the interview was directly before the Tribunal and put indirectly through the delegate’s decision.
29 Further and in any event, the Tribunal did put to the appellant the information given by him in the course of the entry interview that the Tribunal considered may be the reason or part of the reason for affirming the decision under review. It put to the appellant relevant inconsistencies between the interview and his later assertions. It put to the appellant that the interview to say the least did not disclose the TMVP issue. It gave him an opportunity to deal with any relevant discrepancies.
30 I also reject the second ground. There is no substance to the complaint that ss 424A and 424AA were not complied with.
31 The appellant’s appeal must be dismissed with costs.