AUR15 v Minister for Immigration and Border Protection
[2018] FCA 885
•13 June 2018
FEDERAL COURT OF AUSTRALIA
AUR15 v Minister for Immigration and Border Protection [2018] FCA 885
Appeal from: AUR15 v Minister for Immigration & Anor [2016] FCCA 2119 File number(s): VID 1048 of 2016 Judge(s): GREENWOOD J Date of judgment: 13 June 2018 Catchwords: MIGRATION – consideration of a notice of appeal which raises two new grounds not previously agitated before the Federal Circuit Court of Australia – leave given to rely upon the new grounds – consideration of whether the appellant has demonstrated jurisdictional error on the part of the Tribunal having regard to the new grounds Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 424A, 424AA, 425 Date of hearing: 22 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 48 Counsel for the Appellant: The appellant appeared in person. Counsel for the First Respondent: Mr L Brown Solicitor for the First Respondent: Clayton Utz ORDERS
VID 1048 of 2016 BETWEEN: AUR15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
13 JUNE 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent 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
GREENWOOD J:
These proceedings concern an appeal from orders made by, and a judgment of, the Federal Circuit Court of Australia (the “primary judgment”) dismissing the appellant’s application for judicial review (and a claim for the grant of the constitutional writs), of a decision of the Refugee Review Tribunal (the “Tribunal”) made under the provisions of the Migration Act 1958 (Cth) (the “Act”) on 30 April 2015.
The functions formerly exercised by the Tribunal have now been conferred upon the Administrative Appeals Tribunal by operation of the Tribunal Amalgamation Act 2015 (Cth).
The Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a Protection visa.
In the proceedings before the Federal Circuit Court, the appellant contended that the decision of the Tribunal “is affected by an error of law” (Ground 1(a)) and also contended that the Tribunal “denied [the appellant] procedural fairness” (Ground 1(b)). The appellant also asserted in the originating application before the Federal Circuit Court that he was seeking support from a Legal Aid agency. That aid seems not to have been forthcoming as no amended application was filed before that Court; the grounds of review remained unparticularised; no submissions were put on by the appellant before that Court; and he appeared on his own behalf aided by an interpreter.
Federal Circuit Court Judge Harland (the “primary judge”) observed at [8] and [9] of the primary judgment that the appellant was unable to articulate the content of the contended jurisdictional error on the part of the Tribunal. His complaint, in oral submissions before that Court, was that the Tribunal had placed too much weight on changes in his evidence concerning the number of times men had attended his house (that is, his parents’ house) in Batticaloa, Sri Lanka, in search of him, when determining questions of credit and whether the Tribunal could be satisfied of relevant matters: AUR15 v Minister for Immigration and Anor [2016] FCCA 2119 at [8] to [15].
The primary judge examined the Tribunal’s decision in the context of that contention and concluded that no jurisdictional error arose.
The primary judge then examined whether there was any evident basis for a contention that the appellant had been denied procedural fairness by the Tribunal. In the absence of any content to the contention, the primary judge concluded that the material in the Court Book made it apparent that the appellant had been invited to attend a hearing before the Tribunal and he did so, assisted by a migration agent. That agent put on written submissions on behalf of the appellant and also attended the hearing before the Tribunal with the appellant. The primary judge concluded that the Tribunal had properly considered the appellant’s claims and no jurisdictional error arose on either ground: primary judge at [16] and [17].
The appellant, before this Court, does not seek to demonstrate error on the part of the Federal Circuit Court. Rather, the appellant seeks to rely upon two new grounds of challenge to the Tribunal’s decision. Because the appellant continues to have no legal representation and no written submissions have been able to be filed for or by him, the Minister makes no objection to reliance on the new grounds of challenge to the Tribunal’s decision. The appellant is assisted by an interpreter before this Court.
There are two new grounds relied upon and they are these:
1.The Tribunal has not complied with section 424A of the Migration Act by not providing adverse information to the appellant and the learned judge erred in holding with the Tribunal that such information falls within the exception specified in section 424A(3) of the Act, which was not correct.
2.The Tribunal has not assessed the appellant’s claim cumulatively being a Young Tamil of Hindu faith from the East of Sri Lanka with perceived political opinion against the State. It is a jurisdictional error not to assess the appellant’s claim cumulatively. The learned judge erred in holding that this claim was assessed and thereby the Tribunal fell into jurisdiction error.
[emphasis added]
As to Ground 1, the appellant has not identified the “adverse information” he says the Tribunal failed to disclose to him in breach of its statutory duty to do so under s 424A of the Act. Moreover, the primary judge is said to have erred in holding that the relevant information fell within the exception in s 424A(3) of the Act. Of course, it is very difficult to test whether the Tribunal failed to discharge an obligation arising under s 424A(1) in the absence of any content concerning the information denied or not disclosed. The primary judge did not hold or conclude that “information” fell within s 424A(3) which then had the effect of displacing the application of the section to the information. No content was provided by the appellant in support of either ground relied upon by him before the Federal Circuit Court.
The statutory scheme, at least as to this issue, operates on the footing that the Tribunal, subject to ss 424(2A) and 424(3) must:
(a)give to the applicant, in the way the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
Section 424(2A) provides that the Tribunal is not obliged under s 424A to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under s 424AA of the Act.
Section 424A(3) provides that s 424A does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
[emphasis added]
Subject to the engagement of s 425(2) and s 425(3) of the Act, s 425(1) provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The appellant was invited to such a hearing and attended as earlier mentioned accompanied by a migration agent. Section 424AA of the Act provides that if an applicant is appearing before the Tribunal pursuant to an invitation under s 425, the Tribunal may orally give the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. If the Tribunal does so, s 424AA(1)(b) sets out certain obligations falling upon the Tribunal. It is not necessary to set those obligations out in these reasons.
As earlier mentioned, the information (the “adverse information”) said not to have been given to the appellant and said to fall within s 424A(1) is simply not identified at all. It is therefore necessary to look closely at the Tribunal’s reasons to identify the way it went about its statutory function so as to assess whether there was such information falling within s 424A(1) or whether s 424A(1) had, by reason of s 424(3), no application, or whether, no obligation arose under s 424A because s 424AA was engaged.
It is clear from the Tribunal’s reasons that it acted upon, and solely relied upon, two sources of information. First, it relied upon information given to it by the appellant for the purpose of his application for review including information in documents given by the appellant during the process that led to the decision of the delegate under review: s 424A(3)(b) and (ba). Second, the Tribunal relied upon independent country information not specifically about the appellant or specifically about another person: s 424(3)(a). Because these two classes of information fall within s 424A(3), s 424A(1) has no application. There has been no failure by the Tribunal to discharge obligations arising under s 424A of the Act and nor is s 424AA engaged. The first of the two new grounds must necessarily fail.
As to the second of the new grounds, the appellant says that the Tribunal fell into jurisdictional error by failing to assess his claims for a Protection visa cumulatively, having regard to his claims to be a “Young Tamil of Hindu faith from the East region of Sri Lanka” taken together with his claim to be such a person holding a “perceived political opinion against the State”.
The Minister accepts that if an applicant makes a claim that the cumulative effect of the identified factors is that, as a necessary and foreseeable consequence of being removed from Australia to the relevant receiving country, there is a real risk that an applicant will suffer significant harm, the Tribunal is required to consider that claim, that is, the cumulative claim.
The first question then is whether such a cumulative claim has been made before the Tribunal or, having regard to the material before the Tribunal, such a claim fairly arises such that the Tribunal ought to have considered a claim that the cumulative effect of the identified factors gives rise to a real risk of an applicant suffering significant harm.
As to this ground, it is necessary to turn to some of the factors said to be engaged. Before the Tribunal, the appellant claimed to hold a well‑founded fear of persecution such that he was unable or unwilling to avail himself of the protection of the State of Sri Lanka because he feared persecution due to the following factors. First, persecution due to his Tamil ethnicity. Second, persecution due to his actual (or imputed) political opinion that he is a supporter of the Liberation of Tigers of Tamil Eelam (the “LTTE”). Third, due to his membership of a particular social group described as “failed asylum seekers from a Western country”.
He also contended that his removal to Sri Lanka would give rise to a real risk that he would suffer significant harm for the purposes of the complementary protection provisions of the Act. That risk of significant harm was said to be based on his “having departed Sri Lanka illegally”.
The Tribunal formed an adverse view of the appellant as to credit.
In reliance on that finding, the Tribunal rejected a number of the applicant’s key factual claims. It is not necessary to set out all of these findings in these reasons. However, it is desirable to mention some of the more important findings so as to illustrate the approach adopted by the Tribunal and the conclusions it reached.
The appellant is a citizen of Sri Lanka. He is approximately 33 years old. He arrived in Australia by boat on 25 July 2012. The basis upon which he claimed to be a refugee and thus entitled to a Protection visa have been earlier described. As to his activities, the Tribunal accepted that the appellant participated, voluntarily, in an event called a “Pongo Tamil” which is a form of “Tamil Uprising” or festival event often associated with a “Tamil National Resurgence Convention”: Tribunal’s reasons (“TR”), [90]. The Tribunal observed that given the appellant’s evidence of participation in that event was limited to the serving of food and drinks, and his evidence that several Sinhalese classmates “came along for the free food and drink”, the Tribunal found that the appellant’s participation in the event was limited to “the serving of food and drink at and attendance of the cultural event”. At TR [91], the Tribunal observed that although the delegate had accepted the appellant’s claim that his family had been visited three times by men in 2012 and two or three times since the appellant left Sri Lanka, the appellant’s evidence had changed significantly at the Tribunal hearing. The Tribunal noted that at the hearing the appellant described four instances when his parents had been visited by Sinhalese men looking for the appellant. The Tribunal also noted that the appellant further stated that in total, men came to his home approximately 15 times before he left Sri Lanka.
The Tribunal tested that apparent discrepancy with the appellant and noted that the appellant claimed that on three or four occasions the men came to his parents’ home but during other visits “they were just in the area, spying on his parents”. The Tribunal described the appellant’s evidence in relation to these matters as “somewhat vague and inconsistent”. The Tribunal went on to explain at TR [92] why that was so. At TR [93], the Tribunal notes that in his statement of claims and evidence given at the departmental interview as set out in the decision record of the delegate, the appellant had referred to three visits to his family by men looking for him but did not suggest that his parents had been physically harmed. Although the Tribunal notes that his statement given at the departmental interview refers to “the men being abusive on their second visit”, the Tribunal considered that the content of that phrase suggested that the abuse was “limited to verbal abuse” yet, later in his statement, the appellant claimed that he suspected that “his parents had been assaulted but that they did not want to tell him” of it.
However, the Tribunal also noted that at the hearing the appellant described four separate occasions when his parents had been visited by men looking for the appellant. The Tribunal also notes that the appellant said that on the fourth occasion, “his father [had been] beaten by the men”. The Tribunal put to the appellant that he had not previously claimed that his parents had been physically harmed. The Tribunal notes that, in response, the appellant claimed that his father had been “shoved and harassed”. This suggested to the Tribunal that the appellant altered his position on the facts once “concerns were raised with him”.
The Tribunal developed aspects of that matter and the issue of apparent discrepancies and inconsistencies in the appellant’s evidence at TR [95].
The Tribunal at [95] summed up its position in this way:
The applicant was not able to provide a plausible explanation regarding the discrepancy in the number of times his parents’ home had been visited after his departure [from Sri Lanka]. Nor does the Tribunal accept as plausible that, if the applicant’s parents were only visited on two or three occasions from July 2012 to October 2013, the visits would have dramatically increased in intensity in the years after that time. The inconsistency between the applicant’s evidence at hearing that the men [came] to his parents at all times and his claims as instructed to his representatives that the visits occurred during night time add to the Tribunal’s concerns about the credibility of his evidence.
The Tribunal noted the appellant’s explanation that the discrepancies of concern to the Tribunal had arisen because his departmental interview was “short” and he was not able to elaborate on the facts “in detail”. The Tribunal notes the appellant’s contention that he had only been asked on the prior occasion how many times these men came to his family’s home and that he had been stressed. The Tribunal observed at TR [98] that even though it accepted that the appellant may well have been under stress due to the immigration process, that stress was ultimately not an explanation for the Tribunal’s concern about inconsistencies in the evidence.
The Tribunal at TR [100] did not accept that the appellant would not have been able to articulate his claims either in his statement of claims prepared with his legal representative or at his departmental interview, for the reasons relied upon by the appellant.
At TR [100], the Tribunal said this:
The tribunal is of the view that, had men come to the applicant’s parents’ home or area on as many occasions as he claimed at hearing, he would have mentioned it in his claims to the department, either in his statement of claim or at his departmental interview. The tribunal is also of the view that, had his father [been] in fact physically assaulted or beaten, the applicant would have mentioned this significant detail earlier than at his hearing before the tribunal.
[emphasis added]
At TR [101], the Tribunal said this:
Given that the applicant claimed that he faced no problems from authorities in the past, including in relation to the 2005 Pongo Tamil event, the tribunal further finds it implausible that people would suddenly take interest in him seven years after the applicant’s minor participation in a cultural event associated with the Pongo Tamil festival, particularly to the extent of then continually coming to and monitoring his parents’ home several times a month for the next few years.
[emphasis added]
At TR [102], the Tribunal said this:
The tribunal further finds it implausible that these men would have come only to the applicant[’s] parents’ home in [Batticaloa], given that the applicant has resided in Trincomalee since 2003 and given that the Pongo Tamil event which he claims has given rise to suspicions about him also took place in Trincomalee.
[emphasis added]
At TR [103], the Tribunal notes the appellant’s claim that the reason he is of interest now to Sri Lankan authorities is due to “some Sinhalese former school mates who want to use him to advance their careers in the government”. The Tribunal concluded that that claim lacked credibility: TR [103]. At TR [104], the Tribunal said this:
Having regard to the above concerns, the tribunal does not accept that the applicant’s parents were ever approached in 2012 by Sinhalese men looking for the applicant or that any such men showed the applicant’s photograph to his parents, accused the applicant of being an LTTE supporter or were verbally or physically abusive to the applicant’s parents and does not accept that they beat his father. The tribunal further does not accept that these men monitored or spied on the applicant’s parents or asked neighbours about him or his parents. Nor does the tribunal accept that these men have continued to come to the applicant’s parents’ home inquiring about him or monitoring the area at any other time. The tribunal further does not accept that this has resulted in the applicant’s parents not being able to remain in their home.
[emphasis added]
At TR [105], the Tribunal said this:
On the evidence before it, the tribunal also does not accept that the same men were ever looking for the applicant in Trincomalee or went to his former college to obtain his details. While the tribunal is willing to accept that some of the applicant’s former classmates may have obtained jobs in the police, army or security organisations, it does not accept that two of the former Sinhalese classmates who attended the cultural event with him in 2005 are now police officers or that they are now targeting him as a result of his participation in that event in order to advance their career.
[emphasis added]
At TR [106], the Tribunal considered country information before it including that set out in the submissions from the appellant’s representative. Having regard to that information, the Tribunal observed that it was of the view that the country information indicates that Sri Lankan authorities no longer consider the circumstance of being a Tamil, a Tamil male or even a Tamil male from formerly LTTE‑controlled areas, gives rise to a risk profile in Sri Lanka nor does such a profile “impute an individual with a pro‑LTTE opinion”. The analysis of those matters continues at TR [106] and TR [107]. At TR [108], the Tribunal said this:
Given its findings above, the lack of any interest in the applicant in the seven years he has been in Sri Lanka since attending the 2005 Pongo Tamil cultural event, his minimal involvement in that event and the country information set out above, the tribunal does not accept that the applicant would be perceived to be an LTTE supporter or as a person holding separatist views and supporting the renewal of hostilities in Sri Lanka, as has been submitted. …
[emphasis added]
The Tribunal then said this at TR [108]:
Given the above reasons, the tribunal does not accept that the applicant faces a real chance or risk of serious or significant harm as a result of having attended and served drinks at a Pongo Tamil cultural event in 2005. Nor does the tribunal accept on the evidence before it that the applicant would engage in any pro‑Tamil activity in the future that would lead to a real chance or risk of him facing serious or significant harm given his lack of any other activity apart from that in 2005.
[emphasis added]
The Tribunal also noted at TR [109] that the appellant had not made any other claims in relation to harm he faced as a Tamil, apart from being stopped at checkpoints from time to time during the war. At TR [110], the Tribunal observed that having regard to the evidence before it, the Tribunal did not accept that the appellant would face a real chance of serious harm or a real risk of significant harm due to being “a Tamil, a young Tamil male, a Tamil from Batticaloa or for any imputed political opinion arising as a result of that profile or as a result of having attended a Pongo Tamil cultural event in 2005 from the Sri Lankan authorities or any associated paramilitary groups”.
Counsel for the first respondent correctly points out that there are a number of difficulties with the appellant’s contention that the Tribunal fell into jurisdictional error by failing to consider, cumulatively, the claims of the appellant.
The first difficulty is that the appellant has not identified how the aggregation of factors identified in Ground 2 of the notice of appeal, now focused upon by the appellant, leads to a relevant risk of harm if he were to return to Sri Lanka.
The second difficulty is that one of the factors the appellant says the Tribunal ought to have considered cumulatively is the factor of his being a young Tamil “of Hindu faith from the East of Sri Lanka”. However, the appellant did not claim, before the Tribunal, that he was at risk of harm due to his religion. That being so, the Tribunal was not required to consider or take into account or address in any way the implications, so far as a review of the decision was concerned, of the circumstance that the appellant was a young Tamil of Hindu faith from a particular part of Sri Lanka.
The third difficulty is that the Tribunal simply did not accept, as the earlier quotations reveal, that the appellant was suspected of involvement with the LTTE or would be imputed to have and to hold views reflecting an involvement with or in support of the LTTE. That being so, it was not necessary for the Tribunal to consider cumulatively with other factors the contention that the appellant held a well‑founded fear of persecution due to his actual or imputed political opinion to the effect that he is a supporter of the LTTE.
The fourth difficulty is that the Tribunal did not accept that the appellant is at risk of harm due to his ethnicity.
The fifth difficulty is that there was nothing in the material before the Tribunal that expressly suggested that a cumulative claim had any different character to it than an assessment by the Tribunal of the constituent parts upon which the appellant rested a claim for a protection visa either having regard to s 36(2)(a) or s 36(2)(aa). However, it is true that the appellant’s representative, Vrachnas Lawyers, asserted before the Tribunal that the appellant’s claims (“grounds”) “must be considered both separately and cumulatively in assessing whether or not the applicant faces a real chance of persecution”. In other words, the Tribunal might not be satisfied of the relevant statutory matters having considered each ground individually but might reach the relevant state of statutory satisfaction taking into account all the grounds cumulatively and thus must consider them, cumulatively. That was the essence of the proposition put by the appellant’s representatives to the Tribunal.
Had the Tribunal made findings by which it accepted the various claims of the appellant but nevertheless remained unsatisfied of the statutory matters, it would have been necessary for the Tribunal to go on and consider the cumulative effect or consequences, in terms of the statutory factors informing the necessary state of satisfaction, of all of those matters taken together. However, in the discharge of its review function, the Tribunal was not required to consider the cumulative claim now made by the appellant because the claim could not be sustained once the Tribunal reached a finding that it could not be satisfied that the appellant would be imputed with the relevant political opinion or that he was at risk of harm due to his ethnicity.
The final difficulty is that because the Tribunal was pressed to consider, cumulatively, the individual claims then made, the Tribunal recorded at TR [139] and TR [140] that it had considered the claims then made “cumulatively”. There is nothing to suggest that the Tribunal did not, in fact, consider those claims cumulatively in the terms then made before the Tribunal.
Accordingly, Ground 2 of the notice of appeal to this Court necessarily fails.
The appeal must be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.
I certify that the preceding forty‑eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 13 June 2018