ATE16 v Minister for Home Affairs
[2019] FCA 846
•6 June 2019
FEDERAL COURT OF AUSTRALIA
ATE16 v Minister for Home Affairs [2019] FCA 846
Appeal from: ATE16 v Minister for Immigration & Anor [2018] FCCA 3242 File number(s): VID 1535 of 2018 Judge(s): ANDERSON J Date of judgment: 6 June 2019 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court of Australia (Circuit Court) dismissing application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) not to grant protection visa – whether the Tribunal took into consideration the appellant’s individual circumstances – whether Circuit Court erred in reinstating proceedings and determining merits of judicial review application in consolidated hearing and decision
Held: appeal dismissed – Tribunal adequately addressed the appellant’s individual circumstances – no procedural error by the Circuit Court
Legislation: Immigration and Emigration Act 1948 (Sri Lanka)
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 425 and 425A
Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)
Cases cited: ATE16 v Minister for Immigration & Anor [2018] FCCA 3242 Date of hearing: 29 May 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 64 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to
costsORDERS
VID 1535 of 2018 BETWEEN: ATE16
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ANDERSON J
DATE OF ORDER:
6 JUNE 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
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.
REASONS FOR JUDGMENT
ANDERSON J:
Introduction and summary
The appellant appeals from the decision of the Federal Circuit Court of Australia (Circuit Court) to dismiss the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister (delegate) not to grant the appellant a protection visa (Visa).
For the reasons below, the reasons of the Tribunal do not disclose any jurisdictional error on its part. In particular, those reasons evidence adequate consideration of the particular circumstances of the appellant, including his mental health and his concerns about returning to Sri Lanka.
Neither do the reasons of the Circuit Court disclose any appealable error. Given the nature and breadth of the grounds raised by the appellant in his “application in a case” in the Circuit Court, it was open to the Circuit Court, as it did, to determine the appellant’s application to reinstate proceedings in that court, and the merits of his judicial review application, in a consolidated hearing and decision.
The appellant’s appeal to this Court is accordingly dismissed.
Background
On 19 July 2012, the appellant, a citizen of Sri Lanka, arrived in Australia as an irregular maritime arrival.
On 15 January 2013, the appellant applied for a Visa. The appellant’s initial claims for protection were set out in a statutory declaration dated 13 January 2013 accompanying his application. The appellant claimed to fear harm on return to Sri Lanka on the basis of his Tamil ethnicity and his dark skin, an imputed association with the Liberation Tigers of Tamil Eelam (LTTE), and as a failed asylum seeker. He claimed that his father had been abducted when he was three years old, and never seen again, and that his mother had been kidnapped by the Sri Lankan army when he was a child. He described having been apprehended for three days and beaten by the Sri Lankan Criminal Investigation Department (CID) in mid-2005, and that his cousin’s husband, Mariadas, had been arrested and killed by the CID as a presumed LTTE supporter in 2006. He claimed to have fled Sri Lanka to India in August 2006, and Qatar in 2008, in both cases returning to Sri Lanka without incident.
The appellant attended an interview before the delegate on 17 October 2013, at which he raised a new claim that, shortly before his departure for Qatar, he had been detained by the CID for two hours, and that the CID had subsequently come looking for him at his lodgings. The appellant also claimed to have been involved with the Tamil National Alliance (TNA); a claim raised in his entry interview but omitted from his statutory declaration of 13 January 2013.
On 24 October 2013, the appellant’s representative, a registered migration agent, lodged submissions with the delegate together with a further statutory declaration of the appellant dated 24 October 2013. The submissions claimed that the appellant would face harm on return to Sri Lanka on the basis of:
(a)his Tamil ethnicity;
(b)his membership of particular social groups comprising “young Tamil males”, “young Tamil males from Eastern Province”, “young Tamil males from Trincomalee”, “immediate family member of his mother”, “immediate family member of his father”, “family member of his cousin’s husband Mariadas”, “members of the TNA”, “youth group leaders in the [TNA]”, “campaigners for the [TNA]” and “Tamil asylum seekers/returnees who have fled Sri Lanka unlawfully”; and
(c)an imputed political opinion in support of the LTTE, arising from the above matters, his previous arrest, detention and torture, and his work for the LTTE.
On 30 October 2013, the delegate wrote to the appellant’s representatives seeking comment on further specified matters. On 7 March 2014, the appellant’s representatives provided further submissions, country information, a statutory declaration sworn by the appellant on 5 March 2014, and evidence regarding the appellant’s health. Moreover, on 12 March 2018, the appellant’s representatives submitted a translated news report and extract from the Information Book of Uppuveli Police Station dated 17 June 2005 regarding the appellant’s claimed arrest.
On 17 July 2014, the delegate refused to grant the Visa. The delegate found it plausible that the appellant had been previously detained, but did not find the appellant’s central claims to be credible and was not satisfied that the appellant held a profile that would attract adverse attention from the Sri Lankan authorities upon return to Sri Lanka. The delegate accepted that the appellant had committed an offence under the Sri Lankan Immigration and Emigration Act 1948 (IEA) due to his illegal departure from Sri Lanka, but found that there was only a remote chance of the appellant receiving a jail sentence upon his return and/or suffering ill treatment as a result. The delegate was therefore not satisfied that the appellant met the criteria for the grant of the Visa under ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (Act).
The Tribunal’s decision
On 30 July 2014, the appellant applied to the Tribunal for merits review of the delegate’s decision not to grant him a Visa.
On 22 December 2015, the Tribunal invited the appellant to attend a hearing before it on 25 February 2016.
On 24 February 2016, the appellant’s representatives provided submissions, along with a medical certificate dated 22 February 2016. The submissions claimed that, on the appellant’s return to Sri Lanka from India in 2008, he had been detained, but had left the airport despite instructions to the contrary. The submissions also claimed that three generalised “round ups” of Tamil males by the Sri Lankan army in 2012, as referred to in his statutory declaration of 13 January 2013, had actually involved the Sri Lankan army enquiring after him specifically. It was further claimed that the TNA had specific links to the LTTE which had been overlooked by the delegate. In addition, the medical certificate presented by the appellant indicated that the appellant bore scars on his arms consistent with his reports of cigarette burns.
On 25 February 2016, the appellant attended the hearing before the Tribunal with the assistance of his representative and an interpreter. Following the hearing, the appellant was provided with time to provide country information raised at hearing, but did not do so.
On 4 March 2016, the appellant’s representative submitted a mental health assessment report prepared by Foundation House and dated 5 May 2014 (Foundation House Report) indicating that the appellant had significant anxiety and depression symptoms, and that he met the criteria for Post-Traumatic Stress Disorder and Major Depressive Disorder.
On 10 March 2016, the Tribunal affirmed the delegate’s refusal to grant the appellant a Visa. The Tribunal held in its reasons (AAT Reasons) that, having regard to his circumstances, the appellant did not have a well-founded fear of persecution nor was there a real risk that he would suffer significant harm on return to Sri Lanka. The key findings supporting that conclusion are summarised below.
The Tribunal found that there were a series of issues with the appellant’s evidence. First, the Tribunal found the appellant’s evidence about his interaction with immigration authorities on his return to Sri Lanka in June 2008 to be contradictory: AAT Reasons at [40]-[44]. Second, the Tribunal found the appellant’s evidence about the “round ups” off Tamil males in 2012 (which were subsequently claimed by the appellant to be enquiries about him specifically) to have evolved: AAT Reasons at [45]-[47]. Third, the Tribunal noted that the appellant’s evidence in relation to the timing and how he renewed his driver’s license in 2012 was inconsistent with country information, and contradicted the appellant’s evidence that he remained a person of interest on return to Sri Lanka in late 2011: AAT Reasons at [48]-[51].
In relation to the appellant’s claims arising from his family associations, the Tribunal found that the lack of interest in the appellant when he was detained demonstrated that the authorities were not relevantly alarmed by the activities of the appellant’s parents: AAT Reasons at [53]-[57]. The Tribunal accepted that the appellant’s cousin’s husband had been killed but that ten years had subsequently passed and that the appellant would not be harmed for this reason: AAT Reasons at [58]-[63].
In relation to the appellant’s claim that he feared harm by reason of his association with the TNA, the Tribunal accepted that there has been a connection between the TNA and LTTE but that the TNA was, at the date of the Tribunal’s decision, a credible and popular party represented in the Sri Lankan National Parliament: AAT Reasons at [67]-[70]. Consequently, the Tribunal did not accept that the appellant faced any risk of harm by reason of his past association with the TNA.
The Tribunal accepted that the appellant was detained and harmed in 2005 following a bombing, but that he had been released and had not been subsequently sought or detained in relation to the incident: AAT Reasons at [71]-[72], [77]-[79].
The Tribunal accepted that it was plausible in the context of heightened security in 2008 that the appellant, as a Tamil, had been briefly detained and that the police had subsequently sought him: AAT Reasons at [83]. But the Tribunal did not consider that the authorities had any particular interest in the appellant: AAT Reasons at [87]. In this regard, the Tribunal observed that the appellant had returned to Sri Lanka in 2011 and that his driver’s license had been reissued in 2012, both events occurring without issue: AAT Reasons at [88]-[89].
The Tribunal held concerns about discrepancies in the appellant’s evidence regarding “round ups” in 2012, and accordingly did not accept that the appellant was in hiding in 2011 and 2012: AAT Reasons at [98]-[99]. The Tribunal moreover noted that it was unaware of any country information indicating that “round ups” of young Tamil men was still occurring in 2016: AAT Reasons at [102].
The Tribunal had regard to the evidence concerning the appellant’s health concerns, and found that the appellant’s own perception of his health did not demonstrate a need for mental health treatment: AAT Reasons at [112]-[116]. The appellant did not face a real chance of serious harm or a real risk of significant harm for this reason: AAT Reasons at [116].
The Tribunal, having regard to country information, did not accept that anything in the appellant’s background, including some features described above at [8], would lead to an imputed anti-government opinion: AAT Reasons at [127]. The Tribunal did not accept that the appellant faced a real chance of serious harm or a real risk of significant harm as a result of his membership of particular social groups: AAT Reasons at [131].
Although the Tribunal accepted that the appellant would be assumed to be a failed asylum seeker, and that he would be charged under the IEA if he returned to Sri Lanka, but that such the imposition of such charges would not constitute systematic and discriminatory conduct for the purposes of s 91R(1)(c) of the Act: AAT Reasons at [154]-[165]. The process of being charged and the imposition of these penalties did not constitute serious or significant harm: AAT Reasons at [164].
The Federal Circuit Court’s decision
On 4 April 2016, the appellant filed an application and supporting affidavit in the Circuit Court for judicial review of the Tribunal’s decision. The grounds of review were expressed as follows:
1.The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the [appellant] procedural fairness.
2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
On 23 April 2018, the appellant failed to appear at the final hearing and the Circuit Court made orders dismissing the matter for non-attendance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (non-attendance orders).
On 4 May 2018, the appellant filed an “application in a case” in the Circuit Court seeking an order that the non-attendance orders be set aside. The matter came before the Circuit Court for hearing on 11 July 2018, at which the appellant appeared in person.
On 9 November 2018, the Circuit Court delivered judgment dismissing the application for judicial review of the Tribunal’s decision: ATE16 v Minister for Immigration & Anor [2018] FCCA 3242. It is implicit from the reasons of the Circuit Court (FCCA Reasons) that the Circuit Court allowed the “application in a case” to set aside the non-attendance orders, but nonetheless dismissed the application for judicial review of the Tribunal’s decision.
The Circuit Court concluded at [29]-[30] of the FCCA Reasons that:
(a)the appellant’s grounds of review were not particularised, did not point to any particular alleged error of law or denial of procedural fairness, and that it could not be said that the Tribunal made any discernible error;
(b)the Tribunal identified the relevant law and policy and had regard to relevant material; and
(c)the conclusions made by the Tribunal upon consideration of the appellant’s claims and evidence were open to it, and there was nothing which suggested the Tribunal had committed any legal error.
The Circuit Court moreover held that the Tribunal complied with its procedural fairness obligations under ss 425 and 425A of the Act: FCCA Reasons at [31]. In particular, the Circuit Court noted that the appellant was able to attend the hearing, make arguments, and was supported by a migration agent and Tamil interpreter. Furthermore, the Tribunal was aware of the mental health issues raised by the appellant and accordingly afforded him breaks during the hearing. Relatedly, his migration agent did not raise any concerns during the hearing, and the appellant did not appear unable to give evidence and present arguments.
The Circuit Court found that there was no breach of s 424A of the Act as there was no “information” required to be put to the appellant for the purposes of that provision: FCCA Reasons at [31]. It further concluded that the appellant’s final ground of review was not a proper ground of judicial review and that the appellant already had time to seek legal representation: FCCA Reasons at [32].
Appeal to this Court
On 30 November 2018, the appellant appealed from the decision of the Circuit Court to this Court. The appellant initially relied solely on the following ground of appeal:
a)That the court below had failed to understand whether the [appellant] understood the procedure relating to his reinstatement, or that the [appellant] had the “onus” to persuade the court that his application had raised an arguable case.
On 22 May 2019, a week prior to hearing, the appellant sought to file an Amended Notice of Appeal, adding the following grounds of appeal:
b)The court below erred by failing to find that the Tribunal had not taken into consideration that the appellant feared harm from other inmates in detention on return.
c)The court below erred by failing to find that the Tribunal had not taken into consideration the cumulative effect on the appellant’s mental health of him having suffered a fistula requiring surgery, availability of medical services in Sri Lanka and possible detention on return to Sri Lanka.
d)The court below erred by failing to find that the Tribunal had not taken into consideration the appellant’s psychological capacity at the time of the hearing as set out in the 5 May 2014 Foundation House Health Assessment Report that was provided to the AAT prior to a decision being made.
At the hearing of the appeal, the Minister could not point to any prejudice that he would suffer as a result of the inclusion of the additional grounds of appeal. I accordingly granted leave to the appellant to rely upon the three additional grounds of appeal.
The appellant appeared in person at the hearing in this Court with the assistance of an interpreter. The appellant submitted, broadly, that:
(a)the Tribunal had failed to take into account the fact that, as a result of previously undergoing surgery, he was physically unwell at the time of the hearing before the Tribunal and that he was taking pain relief;
(b)the Tribunal did not give him enough time to answer the Tribunal’s questions;
(c)the Tribunal had not taken into consideration the appellant’s mental health issues;
(d)the interpreter at the Tribunal was an interpreter who could translate Hindu but could not translate Tamil properly; and
(e)the migration agent did not handle his case properly before the Tribunal and that he was not well-represented.
Mr Cunynghame, a solicitor, appeared on behalf of the Minister and submitted that the Tribunal was aware of the appellant’s mental health and had taken it into account in its consideration of the application (at AAT Reasons at [38], [112]-[116]). Mr Cunynghame in particular referred to the Tribunal’s finding at [116] that the appellant’s mental health concerns were limited in scope and nature. The Tribunal also considered that the appellant’s own perception of his health confirmed by a medical report did not demonstrate a need for the appellant to undergo mental health treatment. Mr Cunynghame also referred me to the Tribunal’s consideration of the Foundation House Report. Mr Cunynghame submitted that it was plain from the Tribunal record that the Tribunal was aware of the appellant’s mental health issues and had considered those issues in its reasoning. Mr Cunynghame submitted that the reasoning of the Tribunal disclosed no jurisdictional error.
In response to the oral submissions made by the appellant, Mr Cunynghame submitted that there was no substance to the appellant’s complaint that the migration agent had not handled the appellant’s case before the Tribunal properly. Mr Cunynghame further submitted that this was not a matter which was raised before the Federal Circuit Court.
Mr Cunynghame further submitted that there was no substance to the additional grounds of appeal raised by the appellant’s amended notice of appeal-grounds (b), (c) and (d). This was because, as will be further outlined below, each of the matters the subject of those grounds of appeal were considered by the Tribunal in its reasons.
Consideration
Ground of appeal (a) – Failure of Circuit Court to ensure appellant understood procedures
The outcome of the proceedings in the Circuit Court, as expressed in the FCCA Reasons, was the dismissal of the appellant’s judicial review application on its merits. The Circuit Court determined that there was “nothing before the Court which suggests the Tribunal committed any legal error”. It is implicit from these reasons, which addressed the substance of the appellant’s judicial review application, that the Circuit Court allowed the appellant’s “application in a case” to set aside the non-attendance orders.
The first ground of appeal was not expressly addressed by the appellant at the hearing before this Court, but is, on its face, directed to whether the Circuit Court ensured that the appellant was adequately aware of the nature of his application to set aside the non-attendance orders. Interpreting this ground in its most favourable light, an apparent argument on the appellant’s part is, in essence, that the Circuit Court determined the merits of the judicial review application when the appellant was only prepared for, and expecting to argue for, the mere reinstatement of the proceeding.
Support for this argument may be sourced from the appellant’s affidavit sworn 29 April 2018 in advance of the hearing before the Circuit Court on 11 July 2018. The appellant explained in that affidavit that the reason he did not attend the hearing at which the non-attendance orders were made was that, despite seeking assistance, he could not locate the appropriate courtroom. At paragraph 10 of that affidavit, the appellant relevantly deposed as follows:
I now seek an application to set aside the orders made on 23 April 2018 [i.e. the non-attendance orders], so that I have an opportunity to put my case forward.
(Emphasis added.)
This emphasised passage suggests that the appellant only understood the hearing on 11 July 2018 as relating solely to the reinstatement of his judicial review application; but not including the determination of the merits of that application. When this is considered in isolation, the decision of the Circuit Court to dismiss the judicial review application on its merits raises concern. The FCCA Reasons made no reference to the appellant’s “application in a case” nor the hearing on 11 July 2018. Without the benefit of that explanation, or the availability of a transcript of that hearing, the inference is open that the appellant, without the aid of representation in the Circuit Court, did not have adequate notice that the merits of his judicial review application would at that stage be considered and determined by the Circuit Court.
However, this Court must have regard not only to the appellant’s affidavit before the Circuit Court, but also the content of his application. The appellant’s application in a case filed on 4 May 2018 expressed that the following orders were sought by the appellant:
1.That the orders handed down on 23 April 2018 by under rule 13.07 [i.e. the non-attendance orders], be set aside under rule 15.05(2).
2.That the decision of the Tribunal be quashed.
3.A writ of mandamus directed to the Tribunal, requiring them [t]o determine the [appellant’s] application according to law.
4.A declaration that the decision of the Tribunal was not made in accordance with law, by reasons of the ground/s of this application and is void and of no force or effect.
5.Cost
6.Such further order or other relief as the Court deems appreciate [sic].
These orders sought by the appellant in the application in a case in the Circuit Court extend beyond the mere reinstatement of the judicial review proceedings in that court. They contemplate consideration by the Circuit Court of the substance of the appellant’s application for judicial review of the Tribunal’s decision. In these circumstances, it is understandable why the Circuit Court turned to the merits of the judicial review application after reinstatement of the proceedings.
Although it is left to a matter of inference, it appears that the Circuit Court, having accepting the appellant’s reasons for not attending the hearing on 23 April 2018, then turned to the merits of the judicial review application as contemplated by the orders sought by the appellant in his application in a case. In these circumstances, it was open to the Circuit Court to set aside the non-attendance orders, and address the merits of the appellant’s judicial review application, as part of a consolidated hearing and determination.
Based on the materials provided to me, I am satisfied that the appellant had an adequate opportunity to put his case to the Circuit Court, including in relation to the merits of his judicial review application. No breach of procedural fairness, nor any other error, may be discerned from the approach by the Circuit Court.
Ground of appeal (b) – Failure of Tribunal to consider appellant’s fear of harm
The appellant contends that the Circuit Court erred by failing to find that the Tribunal had not taken into consideration that the appellant feared harm from other inmates in detention on return to Sri Lanka. That ground of appeal cannot succeed in light of the detailed consideration of that very matter by the Tribunal, in particular at [166]-[167] of its reasons. The Tribunal concluded as follows at [167]:
The Tribunal does not accept that the [appellant] will be harmed while held for the very short period before coming before the magistrate. The Tribunal notes some people have been held for longer periods, in terms of having other criminal charges or coming to the attention to the authorities for reasons outlined by the UNHCR and GJ and Others. The Tribunal does not accept that this is the situation for the [appellant], and does not accept that he will be held for an extended period, given that he would not be a person of interest to the authorities of other inmates while being held for the short period. The Tribunal does not accept that the [appellant’s] past experience, in 2005, provides guidance to the experience he will have on return in 2016 or beyond.
Ground of appeal (c) – Failure of Tribunal to consider cumulative effect of appellant’s mental health
The appellant contends that the Circuit Court erred by failing to find that the Tribunal had not taken into consideration the cumulative effect on the appellant’s mental health of him having suffered a fistula requiring surgery, availability of medical services in Sri Lanka and possible detention on return to Sri Lanka.
This ground must also fail as the status of the appellant’s mental health was adequately considered by the Tribunal at [38] and [112]-[116] of its reasons. In particular, the Tribunal recorded at [38] that the appellant had provided some information about his mental health concerns but that the appellant had expressed at the hearing before the Tribunal that “it was not something that concerned him”. The Tribunal also gave detailed consideration to the Foundation Health Report and the extent of mental health treatment received by the appellant. After considering these matters, the Tribunal concluded as follows at [116]:
Given the evidence of the appellant, and the recent report of the doctor, the Tribunal finds that the [appellant]’s mental health concerns are limited in scope and nature, and do not affect the [appellant]. The Tribunal considers that the [appellant’s] own perception of his health, confirmed by the medical report of the recent doctor, do not demonstrate a need for mental health treatment. He has not had any such treatment of discussion since May 2014, and has not been on any course of medication for any mental health condition. Given the evidence, the Tribunal consider[s] that the [appellant] does not require assistance for his mental health. The Tribunal finds that the [appellant] does not face a real chance of serious harm or a real risk of significant harm for this reason.
As such, although the Tribunal may not have expressly considered the appellant’s mental health concerns in light of the precise sequence of specific matters raised in the amended notice of appeal, being the suffering of a fistula requiring surgery, availability of medical services in Sri Lanka and possible detention on return to Sri Lanka, it is clear that the Tribunal had genuine regard for the evidence and submissions put before it. And, relevantly, the Tribunal’s reasons record that the appellant did not present his mental health as being of major concern at the hearing before the Tribunal.
Ground of appeal (d) – Failure to consider appellant’s psychological capacity as set out in Foundation House Report
The appellant contends that the Circuit Court erred by failing to find that the Tribunal had not taken into consideration the appellant’s psychological capacity at the time of the hearing as set out in the Foundation House Report.
This ground must fail as it is apparent from the Tribunal’s reasons, as outlined above in response to ground of appeal (c), that the Tribunal specifically considered the appellant’s psychological capacity and mental state at the time of the hearing. In particular, the Tribunal made specific reference to the Foundation House Report at [115] of its reasons.
Other complaints raised by the appellant
The appellant raised other complaints at the hearing before this Court that did not squarely relate to one of the four grounds of appeal.
Translation of statutory declaration
The appellant raised that, when he was preparing his “statement” prior to the Tribunal hearing, he was provided an interpreter from India rather than from Sri Lanka. The appellant said that the differences in pronunciation of Tamil led to errors in his statement. He said that his statement had to be taken two or three times as a result.
Although not clear from his oral submissions, it appears the appellant may have been referring to his statutory declarations provided to the Minister’s delegate setting out the factual bases for his claim for a Visa. The appellant had initially made a statutory declaration dated 13 January 2013, but later made a second declaration dated 24 October 2013. The second declaration explained that some information was missing from the earlier declaration, although there is no reference to any translation error in the first declaration. The appellant made a third statutory declaration on 5 March 2014 that addressed further information requested by the delegate.
Regardless, the appellant accepted at the hearing before this Court that any factual errors or omissions in his statutory declarations had, with the aid of his migration agent, been corrected by the time of the Tribunal’s hearing. The Tribunal therefore had the appellant’s full and correct factual evidence before it prior to making its decision.
Conduct of the Tribunal hearing
The appellant also raised various other complaints in relation to the conduct of the hearing before the Tribunal. To summarise, the appellant said that:
(a)as a result of previous surgery and the resulting medication, he was physically unwell at the time of the hearing;
(b)the Tribunal was “very harsh” which the appellant found “intimidating”; and
(c)the Tribunal did not give the appellant enough time to respond to questions.
With respect to the appellant, there is no evidence to substantiate these claims. This Court did not have the benefit of reading any transcript of the hearing before the Tribunal. And no complaint as to the Tribunal’s conduct of the hearing is apparent either from the tribunal’s reasons or was otherwise put in writing to the tribunal. In fact, the following summary at [38] of the Tribunal’s reasons suggests that the appellant was afforded appropriate treatment before the Tribunal:
The Tribunal spent some time with the [appellant] discussing his claims at the hearing, including taking appropriate breaks. The [appellant] was able to provide evidence and respond to questions in an appropriate manner, including requesting the Tribunal to itemise concerns with the claims as put. No concern with the [appellant’s] ability to present his evidence at the hearing was made by the [appellant] or his agent either during or after the hearing. The Tribunal does not consider that the [appellant] was unable to present and provide evidence at the hearing because of any mental health concern or any other reason.
Consideration of incidents in Sri Lanka
The appellant finally raised at the hearing before this Court that the Tribunal had not asked him about the torture he said that he had experienced in Sri Lanka. In particular, the appellant mentioned incidents in which he was hit in the head and obtained scars from being burnt with a cigarette.
It is again evident, however, that these incidents were considered by the Tribunal. Under the heading ‘2005 Incident’, the Tribunal’s reasons at [77]-[79] addressed, and broadly accepted, the appellant’s accounts of those incidents, but nonetheless determined that those matters did not, at the date of the Tribunal’s decision, support the satisfaction of a criterion for the granting of the Visa:
The [appellant] has claimed that in June 2005 there was a bombing in the vicinity of his home. The [appellant] states that he and other young men were arrested by the authorities for questioning about the incident. The [appellant] claimed he was held for three days, questioned and beaten. He has a sore back from being hit by a rifle and scars on his forearm from cigarette burns. A medical report was provided to state that this was the extent of the injuries. The [appellant] has consistently stated that after 3 days he was released after the intervention of a local priest. The [appellant] confirmed that he did not have any further interaction with the authorities in the year to his departure from Sri Lanka in August 2006.
The Tribunal accepts that the [appellant] was detained in June 2005 in the aftermath of a violent incident in the vicinity. The Tribunal accepts that the [appellant] was harmed while was detained, this is consistent with the country information of the time, the culture of impunity that existed at that time, and the injuries that the [appellant] can demonstrate.
The Tribunal notes that the [appellant] was released after 3 days. That the [appellant] had no further interaction with the authorities until his experience in Colombo in 2008 demonstrates that they did not have any further interest in the [appellant]. On release until his departure for India the authorities have not arrested or detained the [appellant] at any time. He has not claimed that was required to report to anyone, he was not involved in any general roundup, authorities had no particular interest in the [appellant]. The Tribunal considers that the [appellant] was rounded up with other young men, questioned and mistreated, then released. The Tribunal considers that the authorities had no further interest in the [appellant], including no consideration that the [appellant] was a member or supporter of the LTTE.
These passages reveal adequate consideration of the incidents in 2005 raised by the appellant at the hearing before this Court. Accordingly, and to summarise, the additional complaints raised by the appellant do not expose any jurisdictional error on the part of the Tribunal.
Conclusion and orders
I am satisfied that the reasons of the Circuit Court disclose no appealable error. I am also satisfied that the reasons of the Tribunal do not disclose any jurisdictional error on the part of the Tribunal. For these reasons, the appeal is to be dismissed.
There is no apparent reason why costs should not follow the event. I will therefore also make an order that the appellant pay the Minister’s costs of and incidental to the appeal.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson. Associate:
Dated: 6 June 2019