AUS15 v Minister for Immigration and Border Protection

[2018] FCA 148

FEDERAL COURT OF AUSTRALIA

AUS15 v Minister for Immigration and Border Protection [2018] FCA 148

Appeal from:	AUS15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2417
File number(s):	NSD 1681 of 2016
Judge(s):	O'CALLAGHAN  J
Date of judgment:	23 February 2018
Catchwords:	MIGRATION  - appeal against decision of Federal Circuit Court and Administrative Appeals Tribunal – where appellant alleges that respondents failed to consider possible harm – where appellant claims that reason for possible harm that appellant is friends with alleged LTTE supporter who was imprisoned – whether jurisdictional error for failure to consider relevant consideration – whether jurisdictional error for asking the wrong question – whether jurisdictional error for misunderstanding appellant’s case – appeal dismissed
Date of hearing:	13 February 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	11
Solicitor for the Appellant:	Mr S Hodges of Stephen Hodges Solicitor
Counsel for the First Respondent:	Ms B Rayment
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1681 of 2016

BETWEEN:

AUS15
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	O'CALLAGHAN  J
DATE OF ORDER:	23 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. The appellant appeals from the judgment and orders of the primary judge below made on 16 September 2016, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), to affirm a decision of a delegate the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the appellant a Protection (Class XA) visa (the visa).

2. The appellant is a citizen of Sri Lanka. He arrived in Australia on 21 June 2012 as an un-authorised maritime arrival. He lodged an application for the visa on 23 November 2012. On 14 August 2013, the delegate refused to grant the visa. On 27 August 2013, the appellant lodged an application for review of the delegate’s decision with the “Refugee Review Tribunal” which subsequently affirmed the delegate’s decision under review (the Refugee Review Tribunal merged into the Tribunal effective 1 July 2015).

3. The appellant filed an application to show cause in the Federal Circuit Court of Australia on 21 May 2015. The hearing before the primary judge took place on 16 September 2016. The primary judge gave his reasons for dismissing the application that same day.

4. At the hearing of the appeal in this court, Mr Hodges, who appeared for the appellant, agreed that, in substance, his client had one ground of appeal, namely that the Tribunal committed jurisdictional error because it did not ask or answer one question: whether the appellant would be at risk were he to return to Sri Lanka because he was a friend of a person called “Baba”. Baba is someone who, the appellant claimed, had been sentenced to life imprisonment for offences involving storing a bomb or mines on behalf of the Liberation Tamil Tigers of Eelam (the LTTE).

5. In his written submissions, Mr Hodges submitted:

   …that the Tribunal misunderstood the appellant’s evidence in relation to his friend, Baba, being arrested and released. Further … the Tribunal had asked the wrong question in relation to the Appellant’s fears. It was argued that ‘the claim was not whether the appellant was involved with the LTTE, but whether Baba was of interest to authorities because of his activities as a person affiliated with the LTTE’ (and thus cause risk to the appellant). In other words, would the appellant be at risk on return to Sri Lanka because he was a friend of Baba, the person allegedly sentenced to life imprisonment for his offences of storing a bomb or mines on behalf of the LTTE and who died in prison one year later due to unknown causes.

6. Later in his written submissions, Mr Hodges put the point this way:

   Neither the Tribunal nor the court below properly considered whether the [appellant] faced a real risk of harm if he was to return on the basis of his connection to a person sentenced to life imprisonment for hiding weapons for the LTTE … The risk of harm to the appellant as a person who would be returned to Sri Lanka not only as a failed asylum seeker and illegal departee but as the associate of a person sentenced to life imprisonment for serious LTTE criminal offences were not considered.

7. The appellant contends that the Tribunal committed jurisdictional error and the primary judge committed an appellable error as neither properly considered that risk, thereby asking themselves a wrong question, failing to take into account a relevant consideration or misapprehending the appellant’s case.

8. The contention is untenable. It is clear from the reasons given by the Tribunal that it was not only aware of the appellant’s case about the alleged significance of his association with Baba, but that it considered and dealt with that case and found that it was unfounded. The Tribunal in its reasons made clear that it understood the appellant’s claims in detailed reasons which appear under the heading “Claims in the protection visa application.” Because the appellant seeks to contend in this court that the Tribunal did not ask and answer the right question, I will set out the Tribunal’s reasons in some detail, in order to demonstrate that the Tribunal, on the contrary, did address the specific question identified by counsel for the appellant on this appeal:

   Claims in the protection visa application

   [12] In 2003, the [appellant’s] friend Baba was arrested by the army because he was storing landmines for the LTTE … Baba was detained from 2003 to 2012 during which time he was tortured and beaten and he disclosed the names of his friends and associates, including the [appellant’s] name. The [appellant] was not involved in storing weapons for the LTTE.

   [13] In approximately February 2004, the army came to his home looking for the [appellant]. He was at work at the time and his mother told the army he was not at home. The officers asked if he was friends with Baba and they said they wanted to speak to the [appellant]. They asked her where he worked. During that time he would often sleep at work because he was afraid the army would find him at home and arrest and torture him.

   [14] Around May 2014 the army visited his home and asked about his whereabouts. His mother said he was at work and they left the [appellant] feared for his life because the Sri Lanka Army continued to ask about him so he made arrangements to depart the country. In the middle of 2004 he left for Qatar and spent four years there working as a cleaner in hospitals. He returned to Sri Lanka in April 2008.

   [15] In May 2008 the army came to his home and enquired about him. His mother said he was at work.

   [16] At the beginning of 2012 the army came to his home and asked about him. In April 2012 Baba was released from detention, in May 2012 he was recaptured by the Sri Lankan army and given a life sentence. [The appellant] was scared the army had reopened Baba’s case and they would come looking for him again and the problems would start again. He made arrangements to leave Sri Lanka. He left Sri Lanka on 31 May 2012 and arrived [in Australia] on 21 June 2012.

   [17] He feared he would be at risk of harm from the army on account of being perceived as a supporter of the LTTE due to his relationship with Baba.

   …

   Submissions after the interview

   [24] The [appellant’s] representative submitted that the [appellant] faces a real chance of serious harm from the army on account of his imputed political opinion. In 2003 his friend, Baba was arrested and detained by the Sri Lankan army for storing landmines for the LTTE. In April 2012 Baba was released and in May 2012 he was recaptured by the Sri Lanka army and given a life sentence. The Sri Lanka army visited the [appellant’s] home in February 2004, May 2004, May 2008, May 2012 and February 2013 and the common thread tying together these visits was the [appellant’s] connection to a known LTTE affiliate. The [appellant] believed that after Baba was detained, he disclosed the names of his associates and friends.

   [25] The representative submitted that the [appellant] remained a person of interest to the Sri Lankan authorities on account of his friendship with Baba, a known LTTE affiliate and that this placed him at risk upon return to Sri Lanka.

   The delegate’s decision

   [26] The delegate did not find the applicant to be credible and did not accept that he was of interest to the Sri Lankan Army.

   …

   Evidence to the tribunal

   Claims to be perceived to be connected to the LTTE

   [28] The [appellant] told the Tribunal that he did not want to return to Sri Lanka due to his perceived links with the LTTE through an associate named Baba. His evidence to the Tribunal was consistent with his evidence to the delegate in relation to how he met Baba. The [appellant] stated that Baba was in jail from 2003 to 2012. He was tortured and questioned as to whom he associated with and he had to disclose names.

   [29] The [appellant] never spoke to Baba after he was arrested and he did not know any of Baba’s other friends. He was a friend in the manner of an acquaintance. The [appellant] believed Baba had disclosed his name because the authorities had come to his home and asked for him by name, although he was at work …

   …

   Conclusion on credibility

   As a perceived LTTE supporter

   …

   [42] However, the Tribunal does not accept that the authorities would visit the [appellant] on suspicion that he was connected with the LTTE and then not pursue their enquiries when he was not home. He was present when his children were born in 2009 and 2011 … and so was easily located as he was still living in the same house with his wife and his mother and children at that time. The Tribunal is satisfied that if the authorities had wanted to find the [appellant] in relation to suspected LTTE activities they could have done so in the time between when he returned from Qatar and when he left for Australia.

   [43] The Tribunal is not satisfied that the authorities made any enquiries regarding the [appellant]. The Tribunal does not accept that the authorities would have asked if he was connected with Baba, a person he claims was hiding bombs for the LTTE, and then not pursued those enquiries when the [appellant] was out on the first occasion that they visited. The [appellant] had variously stated that Baba was arrested in 2008 and 2012 but if his evidence that he was released and rearrested in 2012 was correct, there would be no reason for the claim to visit in 2008 to be connected to Baba. The Tribunal is not satisfied that the claimed visits took place.

   [44] The Tribunal finds the [appellant’s] claims that he was pursued in the past, and that he would be pursued in the future, on the basis of being named by a person who hid bombs for the LTTE is speculative and unfounded and the Tribunal does not accept the [appellant’s] claims.

   Whether the applicant meets the refugee criterion

   …

   As a perceived LTTE supporter

   [46] For the reasons set out above, the Tribunal is not satisfied that the [appellant] was of any interest to the Sri Lankan authorities at the time that he left Sri Lanka for any reason. The Tribunal is not satisfied that he was perceived to be an LTTE supporter when he left Sri Lanka on the basis of his claims. The Tribunal is not satisfied that there is any reason for the authorities to suspect that he supports the LTTE or has an anti–government political opinion if he returns to Sri Lanka now or in the reasonably foreseeable future. The Tribunal is not satisfied that there would be a real chance that the [appellant] would face harm on return to Sri Lanka as a result of his claims and the [appellant] does not have a well–founded fear of persecution on this basis.

9. Read as a whole, the paragraphs extracted above from the reasons of the Tribunal show: (i) that the Tribunal was aware of the submission put by the appellant that he would be at risk if he were to return to Sri Lanka because he was a friend of Baba, a person allegedly sentenced to life imprisonment for his offences of storing a bomb or mines on behalf of the LTTE and who died in prison one year later due to unknown causes; and (ii) that it did not accept that claim. The Tribunal’s conclusion at [44], recited in [8] above, expressly states that the appellant’s “claims that he was pursued in the past, and that he would be pursued in the future on the basis of being named by a person who hid bombs for the LTTE is speculative and unfounded and the Tribunal does not accept the [appellant’s] claims” [emphasis added]. That conclusion is founded on the paragraphs preceding it that are set out in [8] above and demonstrates that, contrary to the appellant’s contention, the Tribunal correctly identified the proposition about Baba and rejected it for all the reasons there set out.

10. It follows that there is no appellable error in the conclusions of the primary judge that the Tribunal correctly understood the appellant’s association with Baba and the disclosure of information by Baba as being the appellant’s explanation for visits by the authorities and that the Tribunal asked and answered the correct question in that regard: see AUS15 v Minister for Immigration and Border Protection [2016] FCCA 2417 at [18]. It does seem that the primary judge did not extract in his reasons the most significant part of the Tribunal’s reasons, but that is not appellable error.

11. For those reasons the appeal must be dismissed, with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate:

Dated:        23 February 2018