AFW15 v Minister for Immigration and Border Protection

[2016] FCA 626

FEDERAL COURT OF AUSTRALIA

AFW15 v Minister for Immigration and Border Protection [2016] FCA 626

Appeal from:	AFW15 v Minister for Immigration & Anor [2016] FCCA 681
File number:	NSD 400 of 2016
Judge:	MARKOVIC J
Date of judgment:	2 June 2016
Cases cited:	SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Date of hearing:	24 May 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	42
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	N Maddocks, DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 400 of 2016

BETWEEN:

AFW15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	2 JUNE 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1. The appellant, a male citizen of Sri Lanka of Sinhalese ethnicity, appeals from the decision of the Federal Circuit Court of Australia dismissing his application for judicial review of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal): see AFW15 v Minister for Immigration & Anor [2016] FCCA 681 (AFW15).  The Tribunal affirmed the decision of a delegate of the first respondent (the Minister) not to grant the appellant a Protection (Class XA) visa (the visa).

2. The appellant arrived in Australia as an irregular maritime arrival on 25 July 2012.  On 12 December 2012 he applied for the visa.  His claims were set out in a statement annexed to his application. 

3. In summary, the appellant claimed to fear harm in Sri Lanka because he had been an active supporter of the United National Party (UNP) since 2004 and helped to organise political rallies whenever there was an upcoming election.  He assisted with election campaigns in 2004, 2005, 2010 and 2011.  He described incidents that occurred on election day in 2004 and in 2010 and said that during the 2005 presidential election he received threatening phone calls to the effect that if he continued to work for the UNP his life would be at risk and that he should align himself with the United People’s Freedom Alliance (UPFA).  In March 2011, after a local council election, people from the government party came to his house and smashed windows and he was beaten.  After that incident the appellant stayed at friends’ houses and only went home irregularly.  He claimed that since that time people came to his home on several occasions looking for him, the last occasion being approximately two weeks before he left Sri Lanka.  The appellant also claimed to fear harm because of his religion.  He finds both Buddhism and Christianity appealing and wants to attend both churches but has suffered discrimination as a result. 

4. The appellant’s application for the visa was refused by a delegate of the Minister on 1 August 2013. 

5. On 8 August 2013 the appellant applied to the Tribunal for review of the delegate’s decision.  By email dated 11 December 2014 the Tribunal received a statement from the appellant dated 10 December 2014 in which, among other things, the appellant claimed that he also feared harm in Sri Lanka as a result of his illegal departure.  The appellant was invited to appear, and did appear, before the Tribunal to give evidence and present arguments at a hearing which took place on 17 December 2014.  On 9 January 2015, the Tribunal received written submissions from the appellant’s agent and documents in support of the appellant’s claims to be well known in Sri Lanka due to his achievements as an athlete at a national level and his claim of holding the position of UNP chief organiser for the Chilaw district. 

6. On 17 February 2015 the Tribunal affirmed the delegate’s decision to refuse to grant the appellant the visa.

7. The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.  On 24 February 2016 that court made orders and gave judgment dismissing the appellant’s application and ordering the appellant to pay the first respondent’s costs in a fixed amount. 

8. By an originating application for review of a migration decision filed on 21 March 2016, which this Court will treat as a notice of appeal, the appellant now appeals from the orders made and judgment given in AFW15. 

   THE DELEGATE’S DECISION

9. The delegate accepted that the appellant was born and lived most of his life in the north western province of Sri Lanka and accepted that the appellant left Sri Lanka without knowledge of the Sri Lankan authorities.

10. In relation to the appellant’s claims that he is a practicing Buddhist who is also attracted to Christianity, the delegate did not accept as credible the claims that the Buddhists in his local area scolded him for attending church services and that a few Christians objected to his attending church services.  The appellant gave evidence that he attended a church three hours away from home.  Given the distance from his home, the delegate did not accept that people in his local community would be aware of him attending a church.  Nor did the delegate accept that people attending the church would be aware of the appellant’s Buddhist affiliation so as to raise objection to his attendance. 

11. The delegate accepted that the appellant is a supporter of the UNP.  However, the delegate did not accept that he was a key organiser of UNP election campaigns and did not accept that the appellant was anything more than a low level supporter of the UNP.  The delegate had concerns about the credibility of the threats and harm the appellant claimed to have encountered in 2004 and 2005, considered that the appellant embellished his claims in relation to his level of activity during the 2010 election campaign and had concerns about the credibility of the alleged attack and beating of the appellant after the 2010 elections and in relation to the claim by the appellant that his house was attacked by UPFA supporters shortly after the 2011 election.

12. The delegate gave little weight to the copies of three letters provided by the appellant which purported to be from Palitha Range Bandara, UNP member of parliament for Puttalan district, Premasiri Nunasinghe, UNP chief organiser of Anamaduwa electorate and General Sarath Fonseka, leader of the democratic party, attesting to the appellant’s support of the UNP and the consequences he faced as a result. 

13. The delegate noted the appellant’s claims that, since March 2011 and until he left Sri Lanka in July 2012 he lived in hiding, but observed that, at his entry interview, he made no mention of being threatened or encountering any form of harm since 2010.  The delegate also noted that during the protection visa interview the appellant said that he continued to work on his family land until his departure from Sri Lanka.  The family land was in his village and close to his house.  Given those matters, the delegate did not accept that the appellant was the subject of threats or that he lived in hiding for fear of being targeted and harmed by supporters of the Sri Lankan government.

14. The delegate concluded that the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) or under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). 

    THE TRIBUNAL’S DECISION

15. The Tribunal accepted that the appellant was a national of Sri Lanka of Sinhalese ethnicity and a Buddhist and that he resided in Chilaw from about 1985 until he departed for Australia in July 2012.  The Tribunal also accepted that, since he completed his schooling in 2001, the appellant worked as a farmer and construction worker for about four years and that since 2005 he was a self employed farmer on his family’s land.  The Tribunal found that the appellant had departed Sri Lanka by boat on or about 11 January 2012, without the knowledge of the Sri Lankan government, and had entered Australia without a valid visa or travel document. 

16. The Tribunal had doubts about the reliability of the appellant’s evidence and the overall credibility of the appellant’s claims to be involved with the UNP.  The Tribunal found that the appellant was not a reliable witness in relation to those claims.  In particular, the Tribunal:

    (1)did not accept that the appellant was ever a campaign organiser or rally organiser or “Chief Organiser of Chilaw Electorate (UNP)” as claimed, that he ever designed, wrote, created or produced any election related materials for the UNP or that he ever actively participated in an election campaign by putting up posters or distributing leaflets;

    (2)did not accept that the appellant was ever mistreated or harmed in any way or threatened with harm by members or supporters of the UPFA or any other political group in Sri Lanka because of his support for the UNP;

    (3)did not accept the appellant’s claim that he curtailed his activities and limited the extent of his support and involvement with the UNP because of his mistreatment and the threats and harassment he received, which the Tribunal did not accept occurred;

    (4)gave him the benefit of the doubt and accepted that the appellant was a supporter of the UNP, encouraged other people to vote for the UNP and voted for UNP candidates in various elections but categorised his involvement as a “low level supporter of the UNP” for about eight years;

    (5)on the basis of independent information from a range of sources about the situation for UNP supporters in the period in question, accepted that low level UNP supporters had been subjected to targeted adverse treatment or violence.  However, in light of the significant discrepancies in the appellant’s evidence about his claimed mistreatment, the fact of reports of mistreatment of other UNP supporters did not overcome the significant concerns the Tribunal had with the appellant’s claims or excuse the concerns which, cumulatively, led it to find that his evidence on those matters was unreliable;

    (6)on the evidence before it, accepted that the appellant was a successful sporting person and was a well liked and respected person in his community.  However, that finding did not affect in any way the Tribunal’s assessment of his claims to have been a high level and high profile UNP campaigner, which it rejected; and

    (7)was prepared to accept that on return the appellant would continue to provide low level support to the UNP during election campaigns.  Having considered the information before it the Tribunal accepted there was a chance that a low level supporter of the UNP could be subjected to threats, intimidation or physical assault which would amount to serious harm by supporters of opposing parties during election periods.  However, having considered the evidence and information before it, the Tribunal did not accept that, in the particular circumstances of the appellant, there was a real chance that he would suffer harm in the reasonably foreseeable future because of his support for the UNP.

17. In relation to his claims concerning religion, the Tribunal did not accept the appellant’s claim to have been interested in or involved with Catholicism or to have experienced any form of mistreatment or harm for that reason and thus did not accept there was a real chance the appellant would suffer harm or a real risk that he would suffer significant harm because of his religion on his return.

18. In relation to his failed asylum seeker claims, the Tribunal accepted that, upon his return, the appellant would be questioned at the airport by immigration authorities, the CID and potentially the SIS and that, as part of the return procedure, enquiries about the appellant were likely to be made with the police and military in his home area.  However, the Tribunal did not accept that the appellant was previously or is currently a person the police, the CID or other government authorities had or would have any adverse interest in and thus did not accept that there was a real chance that those inquiries would lead to him suffering any harm or that he would be subjected to harm during the interview process or while being processed at the airport.

19. The Tribunal did not accept that there was a real chance that the Sri Lankan government or any other group would impute him with an adverse profile or opinion and subject him to harm because he was a failed asylum seeker or because of his membership of a particular social group of failed asylum seekers or people who fled Sri Lanka illegally and unsuccessfully made claims for asylum in Australia or as returnees from a western country or forced returnees.

20. The Tribunal accepted that the appellant departed Sri Lanka illegally and that if returned he would be charged under the Immigrants and Emigrants Act of 2006 and taken before a magistrate.  The Tribunal:

    (1)held that the Immigrants and Emigrants Act was a law of general application that was not selectively enforced or applied in a discriminatory way and that in being prosecuted under that law there is not a real chance the appellant would suffer persecution;

    (2)noted that the available sources indicated that after being charged it was possible the appellant may spend up to four days in custody on remand before being brought before a magistrate and that conditions in remand cells were poor and below international standard.  However, the Tribunal did not accept that in the particular circumstances of the appellant there was a real chance he would suffer harm, although it accepted that the conditions of the remand cell he might be kept in would cause him to suffer discomfort; and

    (3)noted that while a prison sentence was a possibility it was more likely that a fine of between 50,000 and 100,000 SLR would be ordered and that, in the appellant’s circumstances as a first time offender with no criminal record and no involvement in people smuggling who was not of adverse interest to the authorities, the chance of a custodial sentence was remote.  Accordingly the Tribunal did not accept that there was a real chance the appellant would be imprisoned or that he would be mistreated or would suffer harm while in prison.

21. The Tribunal considered the appellant’s claims individually and cumulatively but did not accept that there was a real chance the appellant would suffer persecution for a convention reason or that there was a real risk he would suffer significant harm if he returns to Sri Lanka now or in the reasonably foreseeable future. 

    PROCEEDINGS IN THE FEDERAL CIRCUIT COURT

22. The appellant sought judicial review of the Tribunal’s decision by application filed on 20 March 2015.  The appellant filed an amended application on 10 November 2015 and relied upon the grounds pleaded in that application which were as follows:

    1.        The Tribunal erred in making a finding an irrelevant consideration.

    Particulars

    a.At [93] after having considered the country information, the Tribunal accepted there was a chance that a low-level supporter of the UNP could be subjected to threats, intimidation and physical assault, which would amount to serious harm, by supporters of opposing parties during election periods;

    b.In the remainder of [93] the Tribunal did not accept that was a real chance the applicant would suffer harm because he was well-liked and respected person in his community; and

    c.The country information supported the applicant’s claim and alternatively the Tribunal failed to consider that being “well-liked and respected person in his community” may make the applicant a target for harm.

    2.The Tribunal erred in applying the definition of “degrading treatment” to the applicant’s particular circumstances.

    Particulars

    a.At [106] the Tribunal accepted that the applicant was a well-liked and respected Sinhalese athlete;

    b.The Tribunal at [112] failed to consider how humiliating the circumstances would be to place the applicant with his profile as a well-liked and respectful Sinhalese athlete in remand in conditions that fall below international standards for 4 days and nights could constitute degrading treatment; and

    c.The applicant would suffer mental pain and suffering due to his profile as a well liked and respected Sinhalese athlete.

23. In relation to ground one the primary judge held that whether or not the country information supported the appellant’s claims did not affect the legality of the Tribunal’s decision.  His Honour noted that it was open to the Tribunal to reject a claim made by an applicant even though that claim might be supported by country information.  What was important was whether the Tribunal’s decision was based upon findings or inferences of fact that were based upon logical grounds: AFW15 at [17].

24. His Honour found that the critical findings of fact made by the Tribunal were based upon the appellant’s evidence and that the Tribunal gave detailed reasons as to why it did not accept that evidence.  The primary judge was satisfied that the reasons given by the Tribunal were open to it and that, even though some or all of the appellant’s claims might have been supported by other evidence, the Tribunal had made no jurisdictional error in rejecting those claims.  He also noted that, once the Tribunal had made findings about the appellant in relation to his involvement in politics, it made an assessment based upon country information about the risk he might face on return to Sri Lanka and that there was nothing before the court to suggest that assessment was not properly based upon the material referred to by the Tribunal: AFW15 at [18].

25. In relation to the claim that the Tribunal failed to consider that being a “well-liked and respected person in his community” may make the appellant a target for harm, the primary judge found that the Tribunal referred to and accepted that the appellant was a successful, well liked and respected person in his community and took that into account in determining the future prospects of the appellant being harmed at [92], [93] and [112] of its reasons: AFW15 at [19].

26. In relation to ground two, his Honour noted that the ground was focused on the Tribunal’s consideration of the complementary protection criterion and that, when considering the issue, the Tribunal accepted that there was a real chance that the appellant would be interviewed and be held in remand for a number of days. However, the Tribunal found that even though prison conditions were poor, this would not cause him extreme humiliation. His Honour held that in making that finding the Tribunal took into account the appellant’s characteristics of being a successful sportsman and well liked and respected and referred to the Tribunal’s findings at [112] of its decision record where it said “[t]he Tribunal does not accept that being in a remand cell in those conditions for that period would cause the applicant, in his particular circumstances and with his attributes, to suffer harm, whether physical or mental pain or suffering, which would constitute significant harm within the meaning of s. 5(1) of the Act”. The primary judge found that the “particular circumstances and attributes” referred to by the Tribunal at [112] were a reference to all of those factors about the appellant that were accepted by the Tribunal including being a well liked and respected Sinhalese athlete. His Honour rejected ground two: AFW15 at [23]-[24].

1. The primary judge also addressed further arguments raised by the appellant at the hearing which, he found, went to the factual findings made by the Tribunal which were open on the material before it.  The primary judge noted that the appellant had argued that he produced documents to prove that he was involved in the UNP but that the Tribunal had not considered them.  His Honour rejected that claim noting that the Tribunal did consider those documents and rejected them as having been falsified: AFW15 at [25].

   THE APPEAL

2. In his originating application for review of a migration decision filed on 21 March 2016, which, as noted above, the Court will treat as a notice of appeal, the appellant raises the following two grounds:

   1.His Honour erred in not finding that the Tribunal did not err in making a finding an irrelevant consideration.

   Particulars

   a)At [93] after having considered the country information, the Tribunal accepted there was a chance that a low-level supporter of the UNP could be subjected to threats, intimidation and physical assault, which would amount to serious harm, by supporters of opposing parties during election periods;

   b)In the remainder of [93] the Tribunal did not accept that was a real chance the applicant would suffer harm because he was well-liked and respected person in his community; and

   c)The country information supported the applicant’s claim and alternatively the Tribunal failed to consider that being “well-liked and respected person in his community” may make the applicant a target for harm.

   2.His Honour erred in finding that the Tribunal did not err in applying the definition of “degrading treatment” to the applicant’s particular circumstances.

   Particulars

   a)At [106] the Tribunal accepted that the applicant was a well-liked and respected Sinhalese athlete;

   b)The Tribunal at [112] failed to consider how humiliating the circumstances would be to place the applicant with his profile as a well-liked and respectful Sinhalese athlete in remand in conditions that fall below international standards for 4 days and nights could constitute degrading treatment; and

   c)The applicant would suffer mental pain and suffering due to his profile as a well liked and respected Sinhalese athlete.

3. The appellant did not file any written submissions in support of his appeal. 

   ADJOURNMENT APPLICATION

4. At the hearing, when invited to make submissions, the appellant initially sought an adjournment of the proceedings on the basis that he wished to retain a lawyer to assist him.  The appellant submitted that he had spoken to one organisation, which, it became apparent was the Edmund Rice Foundation, and which did not do anything for him.  He hoped to get more time from the Court so that he could get assistance from that organisation and so that he could contact another organisation.  The Minister opposed the application for adjournment.

5. I refused to grant an adjournment.  The appeal proceedings were commenced on 21 March 2016, two months prior to the allocated hearing date.  There was no evidence provided by the appellant of the steps he had taken since commencing the proceedings to secure legal representation and the details provided by the appellant from the bar table were vague and suggested that no steps had in fact been taken beyond initial contact with some organisations.

   CONSIDERATION

6. In support of his grounds of appeal the appellant submitted that the Tribunal accepted that he was a respected personality in his community and said that, if he returns, he will be ostracised, disgraced and may even face death.  The appellant also submitted that he had psychological problems which he raised with the Tribunal but the Tribunal did not take those problems into account.  The appellant tendered a letter dated 23 May 2016 from the Lawson Clinic in support of his claim to be suffering from psychological problems.

7. The grounds of appeal replicate the grounds of review raised by the appellant in his amended application filed in the Federal Circuit Court and which was before the primary judge for consideration but in each case allege that the primary judge erred in not finding the alleged error in the Tribunal’s decision.

8. The task of the primary judge in dealing with the application brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error.  The task of this Court on appeal is to determine whether the judgment of the primary judge is affected by appealable error: see SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].

9. At the Minister submitted, to the extent the grounds of appeal raise issues with the Tribunal’s decision they seek impermissible merits review as they contend that evidence was not taken into account and cavil with findings of fact.  The appellant’s submission made at the hearing that the Tribunal accepted that he was a respected member of his community and that if he returns he will be ostracised, disgraced and may even face death is also an attempt at impermissible merits review that cannot succeed.

10. To the extent the grounds of appeal allege an error in the primary judge’s approach, I can discern no such error.

11. In relation to ground one, there was no error in the approach of the primary judge in “not finding that the Tribunal did not err in making a finding an irrelevant consideration”.  The primary judge noted that whether or not the country information supported the appellant’s claim did not affect the legality of the Tribunal’s decision and that it was open to the Tribunal to reject a claim made by an appellant even where the claim is supported by country information.  The primary judge correctly identified that what was important was whether the Tribunal’s findings were based upon logical grounds or were open on the material.  His Honour held that they were and that, even though some or all of the appellant’s claims may have been supported by other evidence, the Tribunal made no jurisdictional error in rejecting those claims.  As the primary judge correctly noted, the Tribunal, having made findings in relation to the appellant’s involvement in politics, then made an assessment based on the country information as to the risk he may face on return to Sri Lanka.  Further, the primary judge found that the Tribunal referred to and accepted that the appellant was a well-liked and respected person in his community and expressly took that into account in assessing the future prospects of him being harmed.

12. By ground two, the appellant alleges that the primary judge erred in finding that the Tribunal did not err in applying the definition of “degrading treatment” to the applicant’s particular circumstances.  Again, there was no error in the approach of the primary judge in reaching his conclusions.  As the primary judge identified, this ground relates to the complementary protection criterion.  The primary judge noted that the Tribunal accepted that there was a real chance the appellant would be interviewed and held in remand for a number of days but noted that the Tribunal found that would not cause the appellant extreme humiliation.  His Honour found that in making the finding the Tribunal did take into account the appellant’s characteristics of being a successful sportsman, well liked and respected, as reflected at [112] of the Tribunal’s decision.  As the primary judge found the particular circumstances and attributes referred to by the Tribunal at that part of its decision were a reference to all of the factors that the Tribunal accepted about the appellant including being a well liked and respected Sinhalese athlete.

13. The appellant submits that the Tribunal failed to take his psychological condition into account, which he raised at the hearing.  A transcript of the hearing before the Tribunal, which is included in the appeal book, includes the following exchange:

    MYour interview with the delegate about a year after you arrived, so you had been here for about a year.  You had been out of the detention centre for a long time.  So why were you muddled and unable to respond to a simple question?

    ABefore I came here I knew that I could seek protection.

    MYes

    AWhen I was interviewed and incidents happened in Sri Lanka, all these things gave me a difficult thing for me, like, confused me.  I want to say something else.

    MYes

    AWhen a person is in a difficult state, then people can forget things sometimes.

    MHow are you feeling today?

    AI am good today.

    MWhat was the difference from the delegate’s interview to today?

    AThere is a big difference.

    MYes

    AI have a different mental state now.  I am working.  I’m not in detention.  I’m here as a free person.  I live in a free society.

    MWhen were you released from the detention centre.

    ANovember 2012.

    MSo when you had been interviewed by the delegate you had been outside of detention for more than 8 months.

14. This exchange is summarised in the Tribunal’s decision record at [24] as follows:

    The Tribunal noted that the interview with the delegate was held more than a year after he arrived in Australia, and that he was not in detention at the time, and it was difficult to understand how being “muddled up” would cause him to not know such uncontroversial pieces of information.  He said he knew that he could apply for protection when he was in Sri Lanka and that, at the time of his interview, all of the different incidents that he was recounting caused him confusion.  In his mental state, he gets confused.  When asked how he felt now, he said he is great now.  When asked what the difference between now and 18 months ago, he said he is working now and not in detention.  When asked when he was released from detention, he said November 2012.  The Tribunal noted that meant he had been out of detention for about eight months at the time of his interview.  He said he was in a bad way and was all by himself in Australia.

15. It is clear that the Tribunal discussed the appellant’s concerns about his mental state at the time of the delegate’s interview and made inquiries about his mental state at the time of the hearing before it.  On the appellant’s own evidence, he indicated that at the time of the Tribunal hearing he was “great”.  It cannot be said that the Tribunal failed to take the appellant’s psychological condition into account.  The appellant is not assisted by the letter from the Lawson Clinic which certifies that the writer, a consultant psychiatrist, has been treating the appellant since 30 March 2015 for chronic anxiety and depression.  The letter discloses that the treatment commenced after the Tribunal hearing and after the date on which the Tribunal made its decision.  No such evidence was provided to the Tribunal.

    CONCLUSION

16. The appeal should be dismissed and the appellant ordered to pay the first respondent’s costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate:

Dated:       2 June 2016