Coq16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1438
•19 November 2021
FEDERAL COURT OF AUSTRALIA
COQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1438
Appeal from: COQ16 v Minister for Immigration & Anor and COK16 v Minister for Immigration & Anor [2020] FCCA 2713 File numbers: VID 697 of 2020
VID 699 of 2020Judgment of: O'BRYAN J Date of judgment: 19 November 2021 Catchwords: MIGRATION – claim for protection grounded on claim of being harmed and fear of harm because of suspected connection with the Liberation Tigers of Tamil Eelam – refusal to grant protection visas under section 65 of the Migration Act 1958 (Cth) – refusal upheld by Administrative Appeals Tribunal – application for review dismissed by Federal Circuit Court of Australia – appeals dismissed Legislation: Federal Court of Australia Act1976 (Cth) s 24(1)(d)
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 424(1), 427(1)(d), 476
Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 58 Date of hearing: 20 May 2020 Counsel for the Appellants: A Krohn Solicitor for the Appellants: Ambi Associates Counsel for the First Respondent: M Hosking Solicitor for the First Respondent: Australian Government Solicitor ORDERS
VID 697 of 2020
VID 699 of 2020BETWEEN: COQ16
First Appellant
COK16
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O'BRYAN J
DATE OF ORDER:
19 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeals be dismissed.
2.The appellants pay the first respondent’s costs of the appeals.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
Introduction
The appellants, designated COQ16 and COK16 to keep their identities confidential, appeal from orders of the Federal Circuit Court of Australia made on 30 September 2020 dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 August 2016. The Tribunal affirmed decisions of a delegate of the first respondent (the Minister) under s 65 of the Migration Act1958 (Cth) (Act) refusing to grant the appellants protection visas.
The appellants are brothers who are male Sri Lankan citizens of Tamil ethnicity. They arrived in Australia by boat in 2012. The appellants applied for protection visas under s 36 of the Act in September 2012. COQ16’s application was made on the basis that he claimed to have been detained and tortured in Sri Lanka by the Sri Lankan army and Police (CID) as a result of suspicions that he had assisted the Liberation Tigers of Tamil Eelam (LTTE) and continues to fear harm should he be returned. COK16’s application was made on the basis that he had been detained and tortured by the CID because of his connection to his brother, COQ16, and continues to fear harm should he be returned. On 26 October 2012, COQ16’s application was refused by a delegate of the Minister. On 29 October 2012, the same delegate of the Minister refused COK16’s application.
On 3 and 4 December 2012, the appellants applied to the Refugee Review Tribunal (RRT), as it then was, for review of the delegate’s decisions. At this time, the appellants had legal representation. The RRT affirmed the delegate’s decisions on 5 May 2015. However, on 29 February 2016, the Federal Circuit Court, by consent, quashed the RRT’s decisions and remitted both matters to the Tribunal.
On 28 and 29 June 2016, the appellants appeared before the Tribunal without legal representation. On 17 August 2016, the Tribunal affirmed the delegate’s decisions in respect of both applications.
On 12 September 2016, the appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision under s 476 of the Act. Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The appellants were legally represented before the Federal Circuit Court. The two applications were heard together and, on 30 September 2020, the primary judge dismissed each application: COQ16 v Minister for Immigration & Anor and COK16 v Minister for Immigration & Anor [2020] FCCA 2713 (Primary Judgment).
On 27 October 2020, the appellants filed notices of appeal in this Court. The appeals are by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW).
The appellants shared the same legal representation and it was accepted that the grounds of appeal relied on by the younger brother, COK16, depended upon the success of the grounds of appeal relied on by the older brother, COQ16. Accordingly, and consistently with the proceedings before the Federal Circuit Court, the two appeals were heard together. These reasons concern both appeals but focus primarily on the appeal of COQ16.
For the following reasons, I have determined that the appeal by COQ16 should be dismissed and it follows that the appeal by COK16 should also be dismissed.
Tribunal decision
The Tribunal delivered separate decisions for each of COQ16 and COK16.
Tribunal’s reasons in respect of COQ16
In its decision concerning COQ16, the Tribunal adopted the summary of COQ16’s claims that was presented by COQ16 in the earlier decision of the RRT, as it believed that to be an accurate reflection of COQ16’s claims (Tribunal decision at [20]). That summary is as follows, with certain place names redacted for confidentiality:
2.The applicant is a Tamil and of the Hindu religion. The applicant was born in [redacted], Puttalam District in the North Western Province of Sri Lanka and lived nearby in [redacted] from the time of his birth until approximately 2010 when he moved to [redacted], Mullativu in the Northern Province of Sri Lanka for work. He worked, first in [redacted] and then in [redacted] as a fisherman.
3.In September 2010 he arrived at the Sellakerni coast in Mullaitivu after fishing with 15 fishermen, and 10 Sri Lankan army soldiers approached them and asked for their ID cards, and when they found he was from [redacted], he and all the others were arrested for being suspected members of the Liberation Tigers of Tamil Eelam (LTTE). He was kept in the Sellakerni army camp for two months until November 2010.
4. They did not know why they were suspected of being LTTE members but they were tortured in the camp. He was fully naked and they tied him up to the ceiling and beat all of his body with batons and the back of a gun, he was interrogated about what he had done for the LTTE as a member.
5. There was an unknown bomb blast in the camp at night and all of the soldiers were dealing with the blast so all 15 fishermen managed to escape from the camp. The applicant went to [redacted] in Mullaitivu to hide out. Then in July 2011 he went to Chilaw near Puttalam to work for [a taxi company]. He was informed by his mother that the Police Criminal Investigation Department (CID) was searching for him and his brother [COK16] was taken by the CID and tortured to reveal the applicant’s whereabouts. His mother told the applicant that he should not come home because CID came to the house often to look for the applicant.
6.Three days before he left Sri Lanka he met his brother [COK16] at their aunt’s house. Their father told them to leave for their safety.
7.He fears being killed by the Sri Lankan government and CID for being suspect of LTTE involvement and for his ethnicity. He fears harm as he left the country illegally. He will not be safe anywhere in Sri Lanka
8.In January 2009, January 2010 and December 2011 the applicant went on pilgrimage to India, staying there for 15 days the first two times and one month in 2011.
9.He left Sri Lanka on 13 May 2012 with his brother [COK16] without the authorisation of local authorities, as their lives were in danger.
10.The applicant arrived on Christmas Island on 10 June 2012 and completed an Entry Interview on 25 July 2012. He was interviewed in relation to his Protection Visa (PV) application on 16 September 2012.
Before dealing with the claims substantively, the Tribunal addressed two preliminary matters, one of which is relevant to the appeal, being the mental health of COQ16.
38.The Tribunal asked the applicant whether he was receiving mental health treatment. The applicant stated that he was not receiving any treatment. The Tribunal asked why he was not receiving treatment, as the medical information from two years ago stated that he was on the waiting list for assistance from Foundation House and that he had been receiving treatment. The applicant provided a variety of answers to this query. The applicant stated he did not have a Medicare card. He stated he had previously had one but it had expired. The Tribunal asked why he had not extended it. The applicant stated he had not bothered to do this. He later stated that he did not believe he was eligible for one, though he had had one previously. The applicant stated he had recently been to the Asylum Seeker Resource Centre who had referred him to a free service in Dandenong. The applicant stated that he had not attended the free service. He stated he did not have a Medicare card. The Tribunal emphasised the advice given to the applicant that the health service was free. The Tribunal noted that the Foundation House service was not dependent on the Medicare card and was free. The applicant stated he had received a call from Foundation House but had ignored it. He had not returned. He was not on any medication. The applicant stated he had seen a doctor but could not remember his name. He again stated he had recently been to the Asylum Seeker Resource Centre and may go again. The Tribunal expressed its concern that the applicant had not been receiving mental health treatment for some time, yet was stating at the hearing that he was suffering from such issues. The medical reports were some time ago.
39.The Tribunal called for a break during the hearing. This was due to the technical failure that the Tribunal identified, as discussed below. At the resumption the applicant stated that he found it difficult to continue due to his mental health issues. The Tribunal acknowledged that the applicant had raised this, and asked the applicant how he wanted to proceed. The Tribunal noted that it had some further questions to ask regarding his claims and relevant country information. The Tribunal explained that it could proceed in a different way than continuing with the hearing. The Tribunal explained that it could write to the applicant, outlining the remaining issues and relevant country information, and give the applicant the opportunity to respond in writing after a suitable period of time. The Tribunal noted the correspondence and response would be in English. The Tribunal noted that the alternative was that the Tribunal proceed with the 20 to 25 minutes of questions and information then and there, with the assistance of the interpreter. The Tribunal invited the applicant to choose which way he wanted to proceed. After considering his options the applicant chose to proceed with the hearing.
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41.The Tribunal considers that the applicant was able to take part in the hearing. He responded to the questions as put to him, and indicated he wished to proceed when asked if he wanted to pursue his claim in an alternative manner. The Tribunal has taken into account the applicant’s health concerns when considering the applicant’s credibility, including the alternate dates that were provided during the hearing. The Tribunal has not given the credibility issues that could arise from the inconsistent evidence provided by the applicant, in particular the timing of certain events, much weight in its consideration of this matter, relying on certain facts and country information that does not rely on the memory of the applicant to be determinative. With regard to his ability to participate in the hearing, the Tribunal considers that the applicant was able to participate at the hearing and discuss the various issues and relevant country information as relevant to his situation.
In the section of its decision record headed “Credibility”, the Tribunal made the following observations with respect to COQ16’s claims with respect to his mental health:
50. The Tribunal notes that the credibility of the applicant is a relevant concern. The previous Tribunal provided in writing some adverse information arising from the inconstancies arising out of the applicant’s evidence and that of his brother. The delegate in their decision also raised concern about the applicant’s credibility.
51. The present Tribunal noted issues of inconsistency at the hearing. The applicant first stated that he could not remember dates, then later details of his claims, because of his mental health issues. The applicant stated that this was the reason he could not remember what had been said, and that if he spoke more he would provide further incorrect information.
52.The Tribunal is concerned by the paucity of mental health information about the applicant since early 2014. The applicant claims to have a serious mental health issue but has not received treatment for two years. The applicant confirmed he had maintained a part time driving job during this time. He explains his failure to get medical assistance on the lack of a Medicare card, but the Tribunal noted that the applicant had chosen not to take up free opportunities for treatment or assistance, irrespective of his Medicare status, and had had mental health assistance from hospital and community care workers. It appears that the applicant has disengaged from the services himself and has remained in the community without using medical assistance for some time. The Tribunal is concerned that the applicant is now using his mental health to try to explain the inconsistencies in his evidence. Notwithstanding that, the Tribunal does note that this was the repeated comment of the applicant, and the Tribunal has taken this into account in its determination.
Ultimately, the Tribunal rejected COQ16’s complaints of having suffered harm and fearing harm on return to Sri Lanka on a credibility basis. The Tribunal’s findings on credibility were as follows (citations omitted):
53.A significant issue that was identified by the Tribunal and discussed with the applicant was his ongoing interaction with the authorities at a time when he claimed to be in hiding and wanted. There is a significant amount of evidence that contradicts the applicant’s evidence about this aspect of his claims.
54.The applicant was issued a passport by the Sri Lankan authorities in 2007 in his name with his address included. The applicant stated a friend assisted him to obtain it. The issuing of a passport to the applicant by the Sri Lankan authorities with the pertinent personal information about the applicant demonstrates that the authorities had little concern with the applicant at this time.
55.The Tribunal noted that the Sri Lankan authorities has a sophisticated intelligence capacity and in the Tribunal’s view, once the applicant was issued with a passport in his identity, it would have led to his being detained and questioned if he was genuinely thought to be person of interest to the authorities. He was not.
56.Using this passport, the applicant travelled to India on three occasions, in January 2009 for 15 days, in January 2010 for 15 days, and in December 2011/January 2012 for a month. The applicant stated he was travelling on pilgrimages. The departures and arrivals were from the International airport in Colombo. The Tribunal asked if the applicant had any difficulty leaving Sri Lanka. The applicant stated he did not, he was with a group of other pilgrims and the travel had been arranged by an agent. He had no issue with the authorities departing Sri Lanka. The Tribunal asked if the applicant had any issues returning to Sri Lanka on any of these occasions. The applicant stated he could not remember. The Tribunal noted that the applicant had not previously raised any concern as to his treatment at the airport.
57.The Tribunal considers that the applicant’s departure from and return to Sri Lanka on three occasions demonstrates that he is not a person of interest to the authorities. The Tribunal notes that during a period where the applicant claimed the authorities were looking for him and he was in hiding, the applicant was prepared to interact with the authorities, using his personal identification, on 6 occasions. The Tribunal noted later in the hearing that Immigration officers, intelligence officers and CID all are present at the airport, yet none of these intercepted the applicant during his departure or return to Sri Lanka. The applicant stated he believed that he was not wanted at an international level, he was not a terrorist. The Tribunal considers that the actions of the applicant and the authorities demonstrate he is not wanted at any level. This activity of the applicant, to repeatedly leave and return to Sri Lanka through official means is not the activity of a person in hiding or in fear of the authorities, and the absence of any adverse action by the authorities against the applicant during these events demonstrate he was not of interest to the authorities.
58.The Tribunal asked why the applicant did not attempt to remain in India after leaving Sri Lanka, but chose to return, if he feared he would be harmed. The applicant stated that he could not stay in India, he did not have a visa. The Tribunal noted that the applicant did not have a visa to remain in Australia yet did so. In the Tribunal’s view, if the applicant had a genuine fear of serious harm from the Sri Lankan authorities he would not have returned to Sri Lanka from India on the occasions he went. India, although not a signatory to the Refugees’ Convention in 2009 was reported to be accommodating more than 100,000 refugees from Sri Lanka. Also, the UNHCR has an office for determining refugee status in New Delhi.
59. The applicant had claimed that he was wanted by the authorities and in hiding in Chilaw in 2011 to 2012. However evidence provided by the applicant directly contradicts this claim. The applicant in his statement claimed to be working as a taxi driver during this time, a fact that the Tribunal stated demonstrated that he was not in hiding, driving a taxi being quite a public activity.
60. The Tribunal noted that the applicant had been issued with a Learners permit by the Department of Motor Traffic on 7 April 2011. The applicant provided his home address on the licence, the delegate noting it to be the same address as provided when he arrived in Australia. The applicant provided evidence that he had taken official driving lessons prior to the licence being issued. The Tribunal stated that the process of getting the driving licence from the government department in April 2011 demonstrated that the applicant had ongoing interaction with the authorities at a time when he stated he was in hiding and wanted by the authorities. The Tribunal noted that the applicant’s actions in getting this licence contradicted his claims that he was being sought by the authorities at this time. The applicant confirmed he got the licence, but that a friend helped him. The Tribunal noted that the applicant’s photograph is on the document, as his home address. The Tribunal considers that the applicant’s interaction with the authorities in learning for and then receiving his learners permit demonstrates again that the applicant was not a person of interest to the authorities, and further demonstrates that he was not in hiding as he claimed.
61. The Tribunal notes that the documentary evidence of the applicant demonstrates this ongoing interaction with the authorities over this time, assisting the Tribunal to coming to its conclusions, and therefore the concerns raised by the applicant regarding his memory are of limited relevance to this aspect of the Tribunal’s findings.
62. The Tribunal finds that, given the applicant’s continuing interaction with different agencies of the Sri Lankan Government from the issuing of the passport in 2007, the repeated uses of the passport through the international airport from January 2009 to January 2012, and the application for and issuance of the leaners permit in April 2011 demonstrate that the applicant did not have a fear of harm from the authorities over this time.
63. The Tribunal further considers that the continuing interaction by different agencies of the Sri Lankan Government with the applicant over this period demonstrates that the authorities had no interest in the applicant over this time.
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65.The Tribunal notes that throughout this claimed period, from 2008 to the end of 2010, the applicant had ongoing official interaction with the authorities. The applicant had applied for his passport in 2007, and used it repeatedly, including in January 2009 and January 2010, at a time when he was claiming to be in hiding and after a period of detention. This information about his interaction with the authorities during this period, using his passport to travel to India and back to Sri Lanka, passing through the international airport to do so, is highly relevant when considering that the applicant claimed to fear harm from the authorities during this period.
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67.The Tribunal has considered the evidence of the applicant with respect to his claimed detention by the army sometime in 2008 and 2010 in Mulliativu. The Tribunal does not accept that this occurred. The Tribunal notes that the applicant was a fisherman who had worked on the Eastern and Western coasts in the past, travelling with the seasons, and had not been detained during these travels. The applicant stated he had no involvement with the LTTE. He had interacted with the authorities on a number of occasions up to 2010, with his passport application and two trips to India. The authorities took no interest in the applicant during these interactions, despite the opportunity to do so if they had the interest. The Tribunal further notes that the applicant had further interactions with the authorities in 2011 and 2012, getting his driver’s licence and travelling once again to India. The Tribunal considers that this interaction, after his claimed detention, and again while he was ‘in hiding’, demonstrates that the applicant has not been truthful in his claims.
68.The Tribunal considers that the evidence provided by the applicant demonstrates that he had no concern with the authorities, and the authorities had no concern with him. The Tribunal considers that the applicant has contrived the claim that he was detained for periods of time between 2008 and 2010 by the authorities. The Tribunal notes that this refutation of the applicant’s claims has not solely relied on the evidence of the applicant, which he himself states is vague due to his mental state, but on the independent documentary evidence provided regarding his travel and licence application. The Tribunal does not accept that the applicant was detained by the authorities for working in an LTTE controlled area. The Tribunal considers that this claim to have been detained by the authorities has been fabricated to support his claim for protection.
69.The Tribunal has considered the other claims by the applicant that he was detained by the authorities. The applicant has claimed that in 2005 he was in Colombo and detained for a short period. He has made this claim to the delegate and previous Tribunal who accepted that this occurred. The Tribunal asked him questions about this at the hearing and the applicant remained consistent in his evidence. The Tribunal accepts that this occurred. The Tribunal noted that the applicant had previously stated he had been detained by the police because he was outside his home town, and was released the next day after his employer came and an [sic] arranged it. The Tribunal considers that in the context of the civil war that was occurring at this time in Sri Lanka, it is plausible that the applicant may have been detained as a Tamil outside of his home area. However the Tribunal further considers that the subsequent release of the applicant after a short period of detention, when his bona fides were provided by his employer, demonstrates that the applicant was no longer a person of interest to the authorities. The Tribunal notes that the applicant was not detained again during this period, and subsequently in 2007 was provided with his passport using all his personal information. The Tribunal does not consider that the applicant has a real chance of serious harm or a real risk of significant harm for this reason.
For the above reasons, the Tribunal was not satisfied that COQ16 is a person in respect of whom Australia has protection obligations under the Refugees Convention (the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)) and, as a result, found that COQ16 does not satisfy the criterion set out in s 36(2)(a) of the Act (Tribunal reasons at [131]). Nor was the Tribunal satisfied that COQ16 is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act (Tribunal reasons at [132]). The Tribunal therefore affirmed the decision not to grant a protection visa.
Tribunal’s reasons in respect of COK16
In separate reasons concerning COK16 delivered on the same day, the Tribunal summarised COK16’s claims as follows (Tribunal reasons at [20]):
5. His brother [COQ16] was working as a fisherman in Mulliativu. As Mullaitivu was controlled by the Liberation Tigers of Tamil Eelam (LTTE), the CID suspected [COQ16] of membership or connection with the LTTE. [COQ16] went into hiding. On one occasion [COQ16] was interrogated by the CID.
6. The CID would come to the family home where the applicant lived to seek information about [COQ16] and where he was. The CID would harass the applicant and his family.
7. In December 2011 the CID came to the applicant’s house and tortured the applicant to get him to tell them where [COQ16] was. The CID cut the applicant’s hand and right thigh with a blade.
8. The CID returned in early 2012 in search of [COQ16]. They threatened the applicant with arrest and detention if he did not tell them where [COQ16] was. Since then the CID constantly came to the house threatening the applicant with arrest and torture.
9. The applicant decided to leave Sri Lanka to avoid harm from the CID. His father suggested he leave with [COQ16]. The applicant met [COQ16] at his aunt’s house three days before they departed Sri Lanka for Australia, on 13 May 2012.
10. He fears being killed by the Sri Lankan government and CID for being supportive of the LTTE as he did not assist the CID in finding [COQ16]. He will be persecuted by the authorities because of his Tamil ethnicity and because he departed Sri Lanka illegally. He will not be safe anywhere in Sri Lanka.
11. The applicant arrived on Christmas Island on 10 June 2012 and completed an Entry Interview on 24 July 2012. He was interviewed in relation to his Protection Visa (PV) application on 16 September 2012.
The Tribunal also did not accept COK16’s claims on a number of grounds, including inconsistencies in the claims made over time. Significantly, at the Tribunal hearing COK16 made a claim that his brother, COQ16, was a member of the LTTE. On that aspect of COK16’s evidence, the Tribunal found:
39The Tribunal does not accept the claim of the applicant that his brother was a member of, a supporter of or provided help to the LTTE. The applicant’s claim was directly contradicted by his brother. The applicant has had the opportunity to raise this claim many times over the past 4 years of his application, in written claims, in submissions on his behalf and three opportunities prior to this hearing in person. He has not done so. He has not explained why he has not raised this matter previously. He has not explained why his brother has provided contrary evidence.
The Tribunal concluded that the credibility of COK16 was affected by that false claim (at [40]).
Relevantly for present purposes, the Tribunal did not accept that COK16’s brother, COQ16, was a person of interest to the Sri Lankan authorities, finding:
47. The Tribunal does not accept that the applicant’s brother was a person of interest to the authorities. The Tribunal does not accept that the applicant’s brother was detained in the past in Mulliativu in 2008 or 2010, given that he had ongoing interaction with the authorities arising from the applicant’s brother’s repeated trips overseas and licence provision, which caused no difficulties. The Tribunal considers that this interaction demonstrates that the applicant’s brother was not a person of interest to the CID or any other authority because he may have worked as a fisherman in areas controlled by the LTTE during the civil war, or any suspected association with the LTTE. The Tribunal does not accept that any impute have been made or will be made by the authorities because the applicant’s brother worked in Mulliativu
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50.Given the findings regarding the lack of interest or harm from by the authorities in the applicant and his brother, the Tribunal does not accept that any member of the applicant’s family have been targeted by any person, known or unknown. The Tribunal does not accept that people have been into the family home seeking the applicant or his brother, and causing difficulty to his parents.
For those reasons, the Tribunal was not satisfied that COK16 is a person in respect of whom Australia has protection obligations under the Refugees Convention and, as a result, found that COK16 does not satisfy the criterion set out in s 36(2)(a) (Tribunal reasons at [103]). Nor was the Tribunal satisfied that COK16 is a person in respect of whom Australia has protection obligations under s 36(2)(aa) (Tribunal reasons at [104]). The Tribunal therefore affirmed the decision not to grant a protection visa.
Decision of the primary judge
The primary judge heard both applications for review together and delivered reasons in respect of both applications in the Primary Judgment.
The grounds of appeal before this Court are materially the same as the grounds of review raised before the primary judge. It is therefore convenient to address the relevant parts of the reasons of the primary judge when considering each ground of appeal.
Grounds of appeal
By his notice of appeal, COQ16 stated the following grounds of appeal:
1.The Federal Circuit Court at first instance erred in not finding that the Second Respondent ("the Tribunal") fell into jurisdictional error in that it was unreasonable.
Particulars
(a) The Tribunal was aware of the Appellant's claims to have mental illness which prevented him from remembering accurately.
(b) The Tribunal's rejection of the claims of the Appellant was based in part on the inconsistency it saw between his claims to have been in hiding, and his interactions with the authorities of Sri Lanka, and based in part on the vagueness or inconsistencies of his claims.
(c) It was unreasonable for the Tribunal to have rejected the Appellant's claims to have been detained, without using its power to get further information or a medical report about his mental health.
(d) It was unreasonable for the Tribunal to have rejected the Appellant's claims to have been detained and in hiding on the basis of his interactions with the authorities because this was based on the assumption that the authorities in one area of government at one time (such as passport or immigration or licensing) would act always consistently and effectively with other areas of government (such as CID).
2. The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it failed to exercise its powers according to law.
Particulars
(a) Further or in the alternative to Ground 1, the Tribunal failed to exercise its powers under section 427(1)(d) of the Migration Act 1958 or otherwise to make inquiries or get information about the mental health of the Appellant.
3. The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it failed to consider relevant considerations.
Particulars
(a) The Tribunal failed to consider whether, even if the Appellant was not in hiding after his detention (Decision record, [63]), he may nevertheless have been detained on suspicion of involvement with the LTTE, and may be at risk of harm by the authorities if he returns to Sri Lanka and checks are made with his local police.
4. The Federal Circuit Court at first instance erred in fixing the costs to be paid by the Appellant to the First Respondent.
Particulars
(a) The Federal Circuit Court at first instance fixed the costs in the figure of $7,467 which was the highest amount set under the Rules of that Court for a migration matter concluded at a final hearing, and it also fixed the costs in the matter of the Appellant's brother, COK16, in the same figure, but both cases were heard together by the same Judge with the same counsel for the parties, and COK16's case was very largely based on the arguments about the decision of the tribunal relating to COQ16, and judgement was given in both matters together as COQ16 v MINISTER FOR IMMIGRATION & ANOR and COK16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2713.
(b) In these circumstances, even if the Appellant does not succeed on other Grounds of the appeal, the interests of the administration of justice required a lower figure of costs at first instance to be fixed in each matter.
The grounds of appeal stated by COK16 were relevantly the same and focussed on the Tribunal’s rejection of the claims of his brother, COQ16. The appellants did not press ground 4 at the hearing.
Grounds 1(a)-(c) and 2
As articulated by the appellants, grounds 1(a)-(c) and 2 raised the following issue: whether the Tribunal acted unreasonably or unlawfully in not seeking information about COQ16’s mental health and ability to remember important details.
Reasons of the primary judge
The primary judge rejected grounds 1(a)-(c) and 2 on two bases. First, relying upon Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 (SZIAI) at [25], the primary judge concluded that there is no ‘duty to enquire’ upon the Tribunal, only a duty to review. The primary judge noted that the applicant was unable to point to any Australian decision where such a ground had been successful with respect to the impact of mental health issues on a person’s credibility. Second, the primary judge found that the Tribunal in fact specifically considered the applicant’s claims to suffer from mental health issues, took those issues into account, and ultimately based its findings with regard to the credibility of COQ16’s claims on the basis of the documentary evidence presented to it. The primary judge found as follows:
22. The Tribunal member took into account the claims by the applicant to have suffered mental health issues. There is nothing to suggest that evidence of a mental health examination would have been definitive, nor compelling in this case. Moreover, on the facts of this case, in the finding rejecting the applicant’s credibility on the issue of whether he was of interest to the authorities, the Tribunal based its findings upon the documents: see the finding as set out in paragraph [68] of the decision (quoted above).
23. Even if the applicant was correct in the claim that the Tribunal could not place weight upon the inconsistencies in his evidence (which I reject), it would leave the documentary evidence before the Tribunal, which was the basis of its decision in any event.
Appellants’ submissions
The appellants submitted that it was unreasonable or illogical for the Tribunal to have rejected the claims of COQ16 to have been detained without having exercised its power to get further information or a medical report about his mental health. The appellants submitted that the primary judge erred in apparently holding that the Tribunal based its findings entirely on the documentary evidence before it. The appellants submitted that inconsistencies in the evidence given by COQ16 as to the precise dates and periods of detention and harm were part of the basis for the Tribunal’s finding that COQ16’s claims were not truthful.
The appellants relied on the Tribunal’s acknowledgment that COQ16 claimed to have mental illness which prevented him from remembering accurately, including claims that he was unable to recall dates and having symptoms of anxiety, depression, agoraphobia and being disengaged from mental health services. The appellants submitted that the Tribunal’s statement that it did not give “much weight” to the inconsistencies in COQ16’s evidence implied that it gave the inconsistencies some weight. Further, the Tribunal stated that it was “concerned that the applicant is now using his mental health to try to explain the inconsistencies in his evidence”.
The appellants submitted (and I accept) that the evidence before the Tribunal confirmed that COQ16 had made longstanding claims of mental illness. The claims were corroborated by, most relevantly, a report from Foundation House which stated that COQ16 presented as distressed, fearful, anxious and at times confused, and experiences symptoms consistent with agoraphobia, anxiety, depression as well as traumatic stress. On the basis of that material, the appellants submitted that it was unreasonable for the Tribunal to reject COQ16’s claims without using its power to get further information (or a medical report) about COQ16’s mental health, particularly in circumstances where the appellants were not legally represented before the Tribunal. The appellants acknowledged that while the Tribunal has power to get information under s 424(1) of the Act and to get a medical examination of an applicant under s 427(1)(d) of the Act, it does not have a duty to exercise those powers. However, the appellants submitted that in not inquiring further into COQ16’s mental health, the Tribunal failed to make an obvious inquiry about a critical fact, easily ascertained, giving rise to jurisdictional error by constructive failure to exercise jurisdiction, relying on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 (SZIAI) at [25]. Alternately, the appellants submitted that, although there is no general duty to make such inquiries, the power is intended to be available and to be used in cases of need, referring to Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR).
The appellants submitted that the Tribunal fell into jurisdictional error because its findings were illogical or unsupported by probative evidence in accordance with the principles stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [16]-[31], [32]-[40] (Gummow ACJ and Kiefel J); [119]-[120], [124]-[133] (Crennan and Bell JJ) or it acted so unreasonably that no reasonable decision maker could so have acted (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).
The appellants sought to distinguish this case from SZGUR (which raised similar issues, but where relief was not granted) on the following bases:
(a)First, the psychiatrist’s report before the Tribunal in SZGUR deposed to a bipolar disorder but that report did not make any link to the forgetfulness that was said to be relevant, whereas in this case a mental health assessment made by Foundation House did make that connection.
(b)Second, in this case the appellant was unable to pay for a mental health report, whereas the appellant in SZGUR had said that he would pay for the report in that case.
(c)Third, COQ16 claimed that he had actually suffered harm, whereas SZGUR’s claim was with regard to fear of harm.
(d)Fourth, COQ16 had been hospitalised for an episode of psychosis.
(e)Fifth, the RRT in this case had raised the issue of mental illness and the possibility of obtaining a report, but such a report was ultimately not commissioned by the RRT or the Tribunal as eventually constituted.
(f)Sixth, the Tribunal in this case said it was concerned with the paucity of information relating to the appellant’s mental health (at [62]).
In combination, the appellants submitted, the above matters take the present case beyond that in SZGUR.
In respect of COK16, the appellants submitted that if the Court finds that it was legally unreasonable to have rejected COQ16’s claims, then the Court ought to find that it was legally unreasonable to rely on the rejection of COQ16’s claims in order to reject COK16’s claims.
The Minister’s submissions
The Minister submitted that the appellants’ argument, that without obtaining a medical report the Tribunal was not entitled to put any weight on the inconsistencies in COQ16’s evidence in makings its decision, is contrary to High Court authority, relying on Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 (SGLB) and SZIAI. Requesting the provision of a report into COQ16’s mental health is not an obvious inquiry about a critical fact, the existence of which is easily ascertained in accordance with SZIAI. The Minister submitted that it is a complex process to have a psychiatrist examine a person and prepare a report, which would then require a separate process of analysis for the Tribunal to determine what effect it has on the findings that the Tribunal makes in relation to the case.
The Minister submitted that, in any event, COQ16’s mental health was not a critical fact in this case. The Tribunal, conscious of COQ16’s claimed mental health issues, did not base its decision on evidence that might be affected by those mental health issues. The Tribunal instead focused on objective documentary evidence and COQ16’s interactions with Sri Lankan authorities that would necessarily have attended his overseas travel and his application for a learner’s permit. The Tribunal also relied on related aspects of COQ16’s evidence that were not the subject of inconsistent accounts, such as his claim to have worked as a taxi driver after obtaining his learner’s permit. The Tribunal emphasised in its decision record that, in rejecting the appellants’ claims, it was not relying solely on inconsistencies in the evidence given by COQ16.
The Minister, relying on SZGUR, submitted that the Tribunal was entitled to decide the matter on the basis that its credibility concerns had not been displaced by material evidence. In SZGUR, such a decision was made notwithstanding a request by the appellants that the Tribunal exercise its power to obtain such evidence. In this case, the Tribunal did not fall into jurisdictional error when, even in the absence of any such request, it gave the appellant the benefit of the doubt by giving greatest weight to documentary evidence and other facts that were not in dispute. The Minister submitted that this case is not distinguishable from SZGUR on the grounds relied on by the appellants.
Consideration
I accept the Minister’s submissions and reject the appellants’ submissions. There is no principled basis for the appellants to contend that, in the circumstances of this case, the Tribunal erred in failing to request further information in regard to COQ16’s mental health.
It is clear from the Tribunal’s reasons that the Tribunal made proper allowance for COQ16’s mental health claims and placed no material weight on the inconsistencies in COQ16’s evidence. As set out earlier, the Tribunal rejected COQ16’s claims because they were implausible in light of other objective evidence concerning COQ16’s employment and travel. Although COQ16 claimed that his trouble with Sri Lankan authorities started in September 2010 and continued until he departed for Australia in May 2012, during that period he acquired a learner’s permit to drive and worked as a taxi driver and also travelled to India and back, ostensibly on pilgrimage, using his passport, without incurring any adverse attention from authorities.
At [41] of its reasons, the Tribunal found that COQ16 was able to take part in the hearing and responded to the questions as put to him. The appellants did not challenge that finding. The Tribunal stated expressly that it had taken into account COQ16’s mental health concerns when considering his credibility, and had “not given the credibility issues that could arise from the inconsistent evidence provided by [COQ16], in particular the timing of certain events, much weight in its consideration of this matter, relying on certain facts and country information that does not rely on the memory of the applicant to be determinative”. The Tribunal’s use of the word “determinative” provides a clear indication that the Tribunal based its decision, in a determinative sense, on objective facts and country information, and not on inconsistencies in COQ16’s evidence. In substance, the Tribunal stated that the inconsistencies in COQ16’s evidence were not material to the Tribunal’s ultimate assessment of the credibility of COQ16’s claims. That statement is then borne out by the Tribunal’s analysis of the objective evidence, which is reproduced above. That evidence provided a proper basis for the Tribunal to reject the claims. At paragraphs [61] and [68], where the Tribunal rejects COQ16’s claims to have been in hiding and to have been detained, the Tribunal reiterates that its findings were made on the basis of the documentary evidence before it, being in particular COQ16’s driver’s licence application and his travel to and from India, and not on inconsistencies in COQ16’s evidence.
Accordingly, any inconsistencies in COQ16’s evidence which might have been caused by memory impairment due to mental illness were not a material factor in the Tribunal’s decision. In those circumstances, any failure by the Tribunal to make further enquiries about COQ16’s mental health, or obtain a medical report, could not result in jurisdictional error.
There is no dispute that the Tribunal had the power to make further enquiries or seek a report if it considered it to be necessary in determining the application. At the relevant time, s 427(1)(d) of the Act provided that, for the purpose of the review of a decision, the Tribunal may:
require the Secretary [of the Department] to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give the Tribunal a report of that investigation or examination.
However, it is well-accepted that this power does not carry with it an obligation requiring the Tribunal to obtain a medical report. In SGLB, Gummow and Hayne JJ observed (at [43], Gleeson CJ agreeing, citations omitted):
… whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence.
In SZGUR, the High Court reiterated that s 427 does not impose an obligation on the Tribunal to obtain a medical report, and the Tribunal is entitled to decide the case on the material before it: at [41] per French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed) and at [75], [87] per Gummow J. In certain circumstances, the Tribunal’s duty to review will entail making enquiries, particularly when the Tribunal has not taken into account “an obvious inquiry about a critical fact, the existence of which is easily ascertained”: SZIAI at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). For the reasons explained above, though, the facts in this case do not rise to the threshold of jurisdictional error as set out in SZIAI. Commissioning and analysing a psychiatric report is not an obvious inquiry about a critical fact in circumstances where the appellant’s mental health was not a material factor in the Tribunal’s decision.
Ground 1(d)
As articulated by the appellants, ground 1(d) raised the following issue: whether the Tribunal’s decision was unlawfully based on the assumption (not evidence) that one area of the Sri Lankan government (passport or immigration or licensing) would act consistently and effectively with other areas.
Reasons of the primary judge
The primary judge found (at [26]) that it was not unreasonable for a Tribunal member to accept that various branches of the Sri Lankan government dealing with immigration, licensing and policing shared information. His Honour concluded that this is an inference that reflects matters upon which a Tribunal member is assumed to have knowledge. His Honour also noted that, in this case, the Tribunal member also relied upon evidence available to it (as set out in [55] and [57] of the Tribunal decision record).
Appellants’ submissions
The appellants noted that the Tribunal rejected COQ16’s claims on the basis that, if COQ16 were a person of interest to the Sri Lankan authorities, his movements would have attracted the attention of the authorities, but they did not. The appellants submitted that the Tribunal’s conclusion was based on an inference that the Sri Lankan authorities would act consistently and effectively, including being in good communication with other areas of government. The appellants argued that the Tribunal had no evidence on which to base this inference and the inference was legally unreasonable. The appellants submitted that the primary judge erred in concluding that the Tribunal acted on inferences reasonably open to it. The appellants argued that the underlying factual question required evidence of how Sri Lankan authorities operate at the level of individual army posts or police stations.
The Minister’s submissions
The Minister submitted that it was open for the Tribunal to take the view that, if the Sri Lankan CID had in fact been looking for COQ16, it is likely that he would not have been able to travel to and from Sri Lanka on his own passport multiple times. The Minister submitted that the Tribunal was entitled to reason on the basis of common human experience, referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [180] (Hayne J). It did not require evidence for the propositions that, within Sri Lanka, bureaucrats might talk to each other and request things from each other in order to achieve their objectives; that officers of the CID or the Sri Lankan army might make such inquiries to investigate or locate a wanted individual; nor that other government agencies would be likely to assist the CID with its inquiries. The Minister further submitted that there was evidence before the Tribunal which supported an inference that passport or immigration authorities would act consistently with the CID. Specifically, the Tribunal referred to country information to the effect that the Sri Lankan authorities have a sophisticated intelligence capacity (at [55]), and that immigration officers, intelligence officers and CID personnel were all present at Colombo International Airport (at [57]).
Consideration
I accept the Minister’s submissions and reject the appellants’ submissions. There is no error in the Tribunal’s reasoning or findings. The appellants’ argument is based on a misunderstanding of the significance of the Tribunal’s findings.
The Tribunal concluded that COQ16’s claims lacked credibility because of an inherent inconsistency between the claim that COQ16, to his knowledge, was wanted and being sought by the Sri Lankan authorities, while at the same time COQ16 had applied for a driver’s licence in order to drive taxis, was employed as a taxi driver, held a passport and had travelled to India and back through the Colombo international airport. The inconsistency arises in two ways. First, the manner in which COQ16 was apparently living his life in Sri Lanka, and travelling to India and back, is inconsistent with the claim that he knew he was wanted by the authorities and was fearful. No inference is required to be drawn by the Tribunal in reaching that conclusion. Second, the manner in which COQ16 was apparently living his life in Sri Lanka, and travelling to India and back, is inconsistent with the claim that the Sri Lankan authorities had been unable to find him. While the latter aspect of inconsistency may require an inference to be drawn that the Sri Lankan authorities are sufficiently sophisticated to track down a citizen who has a driver’s licence, earns a living driving taxis and has travelled internationally on a passport, the inference is a reasonable one to draw. Further, and as submitted by the Minister, the Tribunal noted that the Sri Lankan authorities have a sophisticated intelligence capacity (at [55]) and that immigration officers, intelligence officers and CID personnel were all present at Colombo International Airport (at [57]).
Ground 3
As articulated by the appellants, ground 3 raised the following issue: did the Tribunal fail to consider whether, even if COQ16 was not in hiding after his detention, he may yet have been detained on suspicion of involvement with the LTTE, and be at risk of harm if he returns to Sri Lanka.
Reasons of the primary judge
The primary judge noted (at [29]) that this ground appeared to stem from the fact that the Tribunal identified that COQ16’s claim could be considered in two parts, being harmed and being in hiding for fear of harm. The primary judge concluded (at [31]), that the difficulty with the appellants’ argument was that COQ16’s credibility, as it related to both aspects of the claim, was rejected. For that reason, the primary judge concluded that the Tribunal’s decision was not affected by jurisdictional error.
Appellants’ submissions
The appellants submitted that the Tribunal did not determine two necessary and relevant considerations in its review of COQ16’s case, leading it into jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15] (Mason J). The Tribunal must consider a material question of fact, squarely raised by the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. The appellants contended that the Tribunal found that COQ16 was not detained and tortured on suspicion of involvement with the LTTE in part because the Tribunal rejected the claim that COQ16 had been in hiding from 2009 to 2012. The appellants submitted that the Tribunal failed to consider whether, even if he was not in hiding after his detention, COQ16 may nevertheless have been detained on suspicion of involvement with the LTTE and tortured, and may be at risk of harm by the authorities if he returns to Sri Lanka and checks are made with his local police. The appellants argued that the claim that COQ16 was detained and tortured, and the claim to have been searched for by the CID (and thus to have been in hiding), were two distinct claims.
The appellants further submitted that the Tribunal ought to have considered, as a necessary consideration, whether, based on the Tribunal’s findings that illegal emigrants were checked on arrival in Sri Lanka, including checks by CID with the local police, those checks might cause COQ16 to have a real chance of harm because of fresh or reactivated interest in him as a past detainee and escapee now returning after years abroad. The finding that there was no interest in COQ16 in 2012 in Sri Lanka did not dispose of the question whether there may be interest on his return.
The Minister’s submissions
The Minister submitted that it is clear from the Tribunal’s decision record that it did expressly consider whether COQ16 was detained, separately from considering whether he was in hiding after his detention. The Tribunal made a finding that COQ16 had not been detained by the Sri Lankan army in 2008 and 2010 (at [67]-[68]) for two reasons: first, that he was a fisherman who had no involvement with the LTTE and who was travelling from coast to coast with the seasons, which was commonplace in Sri Lanka; second, that the claim was belied by COQ16’s interactions with authorities “on a number of occasions up to 2010, with his passport application and two trips to India” (at [67]). The Minister submitted that it was open to the Tribunal to reject COQ16’s claims for the reasons that it did.
With respect to the second argument advanced by the appellants under this ground, that the Tribunal ought to have considered whether the appellants may be detained on arrival to Sri Lanka from Australia, the Minister submitted that this argument was not advanced before the primary judge and not set out in the notice of appeal and therefore the appellants should not be allowed to advance that argument before this Court. Further, the Minister submitted that the argument should be rejected, as the Tribunal expressly found that the Sri Lankan authorities would not have any interest in COQ16 on his return, and he would not be harmed on return because of his background (at [102]-[103]).
Consideration
I accept the Minister’s submissions and reject the appellants’ submissions. There is no error in the Tribunal’s reasoning or findings. The appellants’ argument on this ground has no substance.
As the Minister submitted, the Tribunal expressly considered and rejected COQ16’s claim of detention and physical harm in 2010 (at [67] and [68]). That is a complete answer to the ground of appeal. No jurisdictional error has been shown in that finding. The further contention that the claim of being detained and the claim of being in hiding were distinct claims does not take the matter any further. In any event, the contention should be rejected because it is clear from the Tribunal, and the record before the Tribunal, that the claims were not distinct: one proceeded from the other.
The second argument advanced by the appellants under this ground, that the Tribunal ought to have considered whether the appellants may be detained on arrival to Sri Lanka from Australia through immigration checks, should be rejected for the same reason. As the Tribunal found that COQ16 was not of interest to Sri Lankan authorities, there was no basis on which to consider that the appellants would be detained on return to Sri Lanka.
Conclusion and costs
In conclusion, the appeals by each of COQ16 and COK16 should be dismissed with costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate:
Dated: 19 November 2021
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