Federal Court of Australia

BOY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1040

ORDERS

THE COURT ORDERS THAT:

 1.   The appeal be dismissed.

 2.   The appellant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

JACKMAN J:

1    This is an appeal from the judgment of the primary judge in the (then) Federal Circuit Court of Australia (the Circuit Court) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) in BOY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1520. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant the appellant a Protection (Class XA) Visa (the Visa).

2    The appellant is a citizen of Sri Lanka born in December 1989. He first arrived in Australia in December 2012. On 22 January 2013, the appellant applied for the Visa. On 25 July 2013, a delegate of the Minister refused to grant the appellant the Visa. On 14 August 2013, the appellant sought review of the delegate’s decision by the (then) Refugee Review Tribunal. On 20 May 2014 and 13 August 2014, submissions were provided to the Refugee Review Tribunal in support of the appellant’s case. On 26 August 2014, the Refugee Review Tribunal affirmed the delegate’s decision. That decision was set aside, by consent, by the Circuit Court on 19 October 2015. The remittal hearing was held by the Tribunal on 5 September 2016. On 30 November 2016, the Tribunal again affirmed the delegate’s decision. The application for judicial review by the Circuit Court was filed on 12 April 2017, the hearing was conducted on 1 June 2020 and the decision of the primary judge was delivered on 23 July 2020.

The Reasons of the Primary Judge

3    After summarising the appellant’s claims, the primary judge at [12] summarised the salient aspects of the Tribunal’s decision of 30 November 2016 as follows. The Tribunal accepted that the appellant was of Tamil ethnicity and a Hindu; that the appellant and his family lived in Mulliyawalai (an area controlled by the Liberation Tigers of Tamil Eelam (LTTE)) until October 2008; that the appellant’s family owned a farm at which the appellant worked from time to time; and that LTTE cadres would sometimes come to the farm and take produce without making payment. The Tribunal also accepted that the appellant and his family were taken to the Ananda Kumarasamy Camp in Vavuniya. The Tribunal accepted that the appellant’s brother, an LTTE conscript, had been killed by shelling in 2000, and that his sister (a civilian) had been killed in 2009. It also accepted that the appellant was forced to undertake one month’s LTTE self-defence training in 2008, but did not accept that he received any weapons training. It did not accept that the appellant had a close relationship with Brigadier Balraj (a well-known commander in the LTTE), and also found that the appellant was not an LTTE cadre and did not fight for the LTTE during the latter stages of the conflict. The Tribunal did not accept that the appellant was taken from the Ananda Kumarasamy Camp after 2-3 weeks, and detained in the Omanthai Camp for 5-6 months. Rather, the Tribunal accepted that he had been questioned and mistreated during interrogation about whether he had any LTTE links, but found that he was then released because he was of no further interest to the authorities. The Tribunal found the appellant then returned to the Ananda Kumarasamy Camp rather than having escaped from the Omanthai Camp as claimed. The Tribunal also found that the appellant attended the passport office and collected his passport personally on or about 8 December 2009. He had no difficulties in doing so, and the Tribunal considered that the appellant would not have been able to obtain a passport if the authorities, or Sri Lankan Army, had any serious adverse interest in him. It further found that the appellant and his family departed Sri Lanka on 18 January 2010 for India.

4    The Tribunal did not accept, on the country information available to it, that the appellant faced a real chance of being seriously harmed on account of him being a young Tamil male. The Tribunal also did not accept that the appellant would be of adverse interest to the authorities if he returned to Sri Lanka, or that he faced a real chance of persecution on account of any imputed political opinion, from his training with the LTTE or his family links to the LTTE. It also did not accept that the appellant was at risk of arrest, detention or monitoring by reason of his family links to the LTTE. The Tribunal observed that the appellant’s departure from the airport in 2010 indicated that he was assessed by the authorities and found to be of no adverse interest at that time. It also observed that his family had returned to Sri Lanka in May 2013, and had not suffered any serious harm since then. It concluded that he would not be of adverse interest to the authorities, among other reasons, because he had “only some marginal and historical family connections with the LTTE”. The Tribunal also did not accept that the appellant would face any adverse treatment for reason of having sought asylum in Australia. The Tribunal thus concluded that the appellant did not have a well-founded fear of persecution for a reason related to the 1951 Refugee Convention. In reliance on its earlier findings, it also found that the appellant did not face a real risk of significant harm. Accordingly, the Tribunal affirmed the delegate’s decision.

5    The primary judge referred to the fact that the appellant had been represented before the Circuit Court by counsel, who confirmed at the outset of the hearing that the appellant relied on the ground of the initiating application for judicial review as follows:

1.    The Tribunal erred in that it failed to consider a claim expressly made by the applicant, and whether he had a well founded fear of persecution in view of that claim in combination with other claims that he made.

Particulars

(a)    The claim that there were many informant families in the area where the applicant had lived and that the applicant’s family was perceived to be a “Tiger Family”.

The primary judge referred to the written submissions by counsel for the appellant, identifying the claims for review as follows:

(a)    There were Tamil civilians in the vicinity of the applicant’s family farm who acted as informants for the army, and the applicant’s family was known as a “Tiger family”.

(b)    Extortion, especially of Tamils, at the hands of army personnel is widespread in Sri Lanka.

6    As to subparagraph (b) in that statement of the claims for review, the primary judge did not accept that such a claim was expressly made by the appellant or squarely arose on the material before the Tribunal: [21]. The primary judge said that the appellant did not pursue subparagraph (b) independently from the appellant’s claim that the Tribunal failed to consider the risk of harm to the appellant where his family was known as a “Tiger family” and that there were Tamil civilians in the vicinity of the family’s farm who acted as informants for the army: [18]. The primary judge referred to the appellant’s counsel’s submission that if the appellant was perceived to be a member of a Tiger family, he may have been in danger and the victim of extortion: [19]. Accordingly, the primary judge at [29] said that, even if a claim of a risk of extortion of the appellant at the hands of army personnel was a claim made and not considered by the Tribunal, the Tribunal’s clear and unambiguous findings were such that it was not necessary to make a specific finding as to extortion because it was subsumed in findings of greater generality, citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ).

7    In relation to Ground 1, Particular (a), the primary judge said that counsel for the appellant submitted that the Tribunal left open the question of the appellant’s family being a “Tiger family” on the basis of the appellant’s relationship to deceased cadres, including the appellant’s brother: [30]. Counsel for the appellant submitted that the Tribunal failed to consider whether the appellant may face persecution or significant harm because of the perception of his family as a “Tiger family” and whether informants remain operative: [31].

8    The primary judge referred at [33] to the reference to the appellant’s family as a “Tiger family” having been made in the appellant’s representative’s submission dated 20 May 2014, under the heading “Brief Account of Background Facts relevant to Applicant’s Claims”, which described the background as follows:

As farming was the family vocation, during his schooling days (after school hours) and after leaving school the applicant took up to farming of which he was very much fond of. The farm was located in Murippu in Kumulamunai. During this time the LTTE cadres used to come and simply take away as much produce as was needed by them without payment. Very often the family gives the cadres cash contribution too whenever asked for. Sometimes they ask for food parcels which too are provided. At that time there were a number of Tamil civilians in the vicinity who acted as informants to the army and the family of the applicant was noted as a ‘Tiger family.’ The applicant would have been forcibly conscripted by the LTTE but was spared (except for the one month’s training referred to in para 6 above) because under their rules, conscription is not enforced on a Maveerar Kudumbam (Family), In addition, the applicant was the last remaining male child of the family.

The primary judge said there was no other articulation by the appellant or his representative of a claim to fear harm in terms of Ground 1, Particular (a), namely that there were many informant families in the area where the applicant had lived and that the appellant’s family was perceived to be a “Tiger family” thereby placing the appellant at risk: [34]. The primary judge said that the submission which I have extracted above, in which the reference to being a “Tiger family” was made, was specifically referred to by the Tribunal in its decision record: [35]. The primary judge referred to the Tribunal noting that it had “considered the applicant’s representative’s submissions carefully and where appropriate referred to them in this decision”: [37].

9    After referring to further findings of the Tribunal, the primary judge said that the Tribunal referred with great specificity to country information before it to the effect that the security situation in Sri Lanka had improved, including for perceived supporters of the LTTE: [42]. The primary judge also referred to the Tribunal having had regard to the fact that the appellant’s family had returned to live in the family home and not suffered any serious harm since returning: [42]. The primary judge accepted the Minister’s submission that the Tribunal’s findings dealt with any perceived links the appellant had to the LTTE and whether he was of adverse interest to the authorities for that or any other reason, and the Tribunal did not accept that the appellant was at harm now or in the reasonably foreseeable future for any of the reasons advanced by the appellant: [43].

10    The primary judge was not satisfied that the appellant had made a specific claim of a fear of harm as a member of a family known as a “Tiger family”, as distinct from being a member of a family who gave support to the LTTE, the reference to being a “Tiger family” having been contained only in background material provided by the appellant’s representative: [44]. The primary judge said that the Tribunal dealt comprehensively with the appellant’s claims to fear harm by reason of his family’s affiliation with the LTTE: [45].

11    The primary judge said that the Tribunal’s comprehensive consideration of the appellant’s claims arising from his familial connections and support to the LTTE were findings of greater generality which subsumed the need for the Tribunal to make an express finding about whether his family was known as a “Tiger family” in 2008, referring again to WAEE: [46]. The primary judge did not accept that a separate claim was raised of a fear of harm as a member of a “Tiger family” as distinct from a claim to fear harm because of family links to the LTTE, which required a separate determination by the Tribunal: [47]. In particular, the primary judge noted that the Tribunal accepted the appellant’s assertion that he had never been a member or supporter of the LTTE: [48]. In relation to the appellant’s claim that he feared that his family’s links to the LTTE and his one month’s training would bring him to the notice of the Sri Lankan authorities, the Tribunal stated that, “Taking into account the country information set out above, the Tribunal does not accept that the applicant will face a real chance of persecution for reasons of his imputed political opinion arising from his training with the LTTE or his family links to the LTTE”: [49]. Further, the primary judge said that in light of the Tribunal’s comprehensive consideration of the appellant’s family’s LTTE links, even if the Tribunal should have made a specific finding about whether the appellant’s family was a “Tiger family”, such an error was not material and would have made no difference to the Tribunal’s conclusion that the appellant was not at risk of harm if returned to Sri Lanka for any reason: [50]. In addition, the primary judge did not accept the appellant’s further submission that if the appellant did not live at the farm between 2008 and 2014, then there was no chance to inform on the appellant during that period and it was therefore irrelevant that the appellant was not of interest to the authorities in 2010, noting that the Tribunal did not find that the appellant’s profile was sufficiently different from that of his brother-in-law that the appellant was at a risk of harm different to that of his parents and brother-in-law: [51].

12    The primary judge referred to the well-established principle that the Tribunal is not required to accept uncritically any and all claims made by an applicant: [52]. Further, the primary judge referred to the principle that the Tribunal did not have to possess rebutting evidence before holding that a particular assertion was not made out: [52].

13    The primary judge then said that the findings of the Tribunal were open to it on the evidence and material before it and for the reasons it gave, and were based on rational grounds and arrived at after considering those grounds that were logically probative of the issues before it and were not tainted by any failure to afford procedural fairness and were not without an intelligible foundation: [53]. The primary judge said that the Tribunal identified with specificity all claims made by the appellant and considered all the material and country information placed before it by the appellant, and did not overlook any relevant material: [53]. Accordingly, the grounds of the application were not made out: [54]. The primary judge concluded that the Tribunal’s decision was not affected by jurisdictional error and accordingly, pursuant to s 474 of the Migration Act 1958 (Cth), the Circuit Court had no power to interfere: [58]. The primary judge therefore dismissed the proceeding with costs: [59].

Ground 1 of the Notice of Appeal

14    Ground 1 alleges that there is “jurisdictional error in the Federal Circuit Court’s decision”. Read generously in favour of the appellant, I take that to be an allegation that the primary judge erred by failing to find jurisdictional error by the Tribunal, rather than what would be an unnecessary allegation of jurisdictional error by the primary judge.

15    In the Circuit Court, the appellant’s ground of review asserted that the Tribunal failed to consider “a claim expressly made” by the appellant, namely that there were informant families in the area where the appellant lived and his family was perceived to be a “Tiger family”. That claim was stated in the appellant’s submissions to the Refugee Review Tribunal dated 20 May 2014. In those submissions, the appellant’s solicitor referred to the appellant having assisted at his family’s farm after school, that LTTE cadres used to come and take produce without payment, and that his family gave LTTE cadres cash contributions and sometimes food parcels. It was in that context that the appellant stated that there were informants in the area and that the appellant’s family was noted as a “Tiger family”. The primary judge correctly observed that that information was provided to the Tribunal as part of the background facts. Other than the reference by way of background, the primary judge said that the appellant did not make any claim that, on return to Sri Lanka then or in the reasonably foreseeable future, he would be harmed specifically because his family had been noted as a “Tiger family” at that particular point in time.

16    The Minister submits, and I accept, that the Tribunal was plainly aware of, and understood that aspect of the background facts provided to it, having referred expressly to the appellant’s submission in which it was contained, and indicated that it had considered the appellant’s submissions. The Tribunal made findings about the appellant’s work at the family farm, accepting as it did that the appellant’s family owned a farm at which the appellant worked until October 2008, and that LTTE cadres would come to the farm and take produce without payment. However, the Tribunal did not accept the appellant’s claim that the family provided money and food parcels. In my view, there is no basis on which it could be said that the Tribunal had failed to deal with the matter. The Minister submits, and I accept, that an inference should not too readily be drawn that the Tribunal has failed to deal with the matter where its reasons are comprehensive and the matter has been identified at some point, as it plainly has been in the present case: see WAEE at [47]. Further, the Minister submits, and I accept, that there is no error (let alone jurisdictional error) in the Tribunal not making an express finding about whether the appellant’s family were at the time perceived as a “Tiger family”. The Minister submits, and I accept, that the Tribunal is not required to make an express finding in response to each and every matter put forward by a review applicant, especially where it makes findings of greater or broader generality which encompass those matters: WAEE at [47]; Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [48]-[49] (Besanko, Barker and Bromwich JJ).

17    The primary judge observed that the Tribunal made extensive findings in relation to the appellant’s perceived links or connection to the LTTE, including by reason of family connection, and whether he would be of adverse interest to the Sri Lankan authorities, for that or any other reason. The Tribunal described the appellant’s links to the LTTE as “marginal”, and found that in December 2009 (after his family’s assistance to the LTTE which was the subject of this ground) the appellant was released from interrogation by the Army because he was of no further interest to the authorities. The Tribunal observed that the appellant was, in 2010, able to depart Sri Lanka to India legally via Colombo airport, which indicated that the Sri Lankan authorities had “no adverse interest” in the appellant at that time, and if he was not of adverse interest to them in 2010, he would not be of adverse interest in 2016 at the time of the Tribunal’s decision. The Tribunal referred extensively to country information before it to the effect that the security situation in Sri Lanka had improved, including for those persons perceived to support the LTTE. Those findings by the Tribunal were broad findings dealing with what, if any, perceived links the appellant had to the LTTE (including on account of his family), and whether he was of adverse interest to the authorities for that or any other reason, and the Tribunal did not accept that he was at risk of harm then or in the reasonably foreseeable future for any of the reasons advanced by him. Those findings necessary subsume and deal with the asserted background fact that, in 2008 (8 years before the Tribunal’s decision), his family was known as a “Tiger family”. The Tribunal simply did not accept that the appellant then had anything more than a “marginal” connection to the LTTE, including by reason of his family, or that he then or in the reasonably foreseeable future faced a risk of harm for that or any other reason. The Minister submits, and I accept, that in those circumstances there was no need for the Tribunal to make an express finding about whether his family was known as a “Tiger family” in 2008. In my view, the conclusions of the primary judge were correct.

18    In relation to the appellant’s attempt to argue before the primary judge that the Tribunal had failed to consider a claim that the appellant would be the subject of extortion, the primary judge was correct to reject that argument. As her Honour observed, no such claim was advanced by the appellant, and accordingly there was no obligation on the Tribunal to consider that matter. In any event, as the primary judge also found, any such claim to fear harm on account of extortion was subsumed within and rejected by the Tribunal’s more general findings and explanations as to why the appellant was not, either then or in the reasonably foreseeable future, of any adverse interest to the Sri Lankan authorities.

Ground 2 of the Notice of Appeal

19    Ground 2 alleges that the Tribunal’s reasons for concluding that the appellant was not a person to whom Australia had protection obligations “were neither logical nor rational”.

20    Ground 2 does not allege any error by the primary judge. No such argument was put to the primary judge, although the primary judge did make a general comment, not in response to any particular argument put to her Honour, that the Tribunal’s reasons were rational and logical. As this argument is a new ground, the appellant requires leave to advance it before this Court: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ). In my view, any such leave should be refused. First, the appellant was represented by counsel and a solicitor in the Circuit Court, and the appellant has offered no explanation as to why the ground was only being advanced now on appeal. Second, the ground lacks any merit. In order to establish jurisdictional error by the Tribunal based on illogical or irrational findings of fact, extreme illogicality must be demonstrated, measured against the standard that it is not enough for the question to be one on which reasonable minds might come to different conclusions: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30](5) (Kenny, Kerr and Perry JJ). A finding will not involve jurisdictional error if a reasonable tribunal could reach that finding on the same material; the question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ). In the present case, the Tribunal gave detailed and comprehensive reasons for the findings it made, and nothing said by the Tribunal was irrational or illogical. Indeed, the appellant has not identified any particular findings which it submits was irrational or illogical, or explained why that is so. This ground appears to be no more than an expression of the appellant’s disagreement with the Tribunal’s findings. As Crennan and Bell JJ have said, describing reasoning or a finding as irrational, illogical or unreasonable may merely be an emphatic way of expressing disagreement with it: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124]. Such disagreement does not reveal jurisdictional error.

Conclusion

21    Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:    31 August 2023