AAV15 v Minister for Immigration and Border Protection

The proceeding before the Tribunal 8 The appellant was represented by a solicitor-migration agent in the proceeding before the Tribunal who made, among others, written submissions identifying his claims. Those claims continued to be that the appellant feared persecution or serious significant harm were he returned to Sri Lanka because of his Tamil ethnicity and or imputed political opinion, because he was suspected of being part of, or associated with, the LTTE and because of the two matters just mentioned that are now no longer able to be pursued by him. 9 At the hearing before the Tribunal, which had to be adjourned once, the Tribunal took evidence from the appellant in which he elaborated on his claims. The Tribunal put matters to him about his evidence. 10 The Tribunal concluded that he had not left Sri Lanka for the reasons that he claimed. It found that he had manufactured those claims in an attempt to provide a basis for protection in Australia and it gave detailed reasons for those findings. It accepted that his brother had been abducted, but found that the appellant had not given truthful evidence to it in relation to the brother's disappearance, and that that gave rise to serious concerns about his overall credibility. 11 It noted that the appellant had first mentioned, during the hearing held in December 2014, that he had learned some eight months previously that his brother had died and had been abducted by the LTTE. He claimed to the Tribunal that his uncle, who lived in another part of Sri Lanka, had telephoned his mother with that news. The Tribunal did not accept that account was true or that his brother had had any involvement with the LTTE. It also rejected his claims to have had ongoing problems as a result of which he had to report regularly to the authorities or that he was questioned and interrogated shortly before he left Sri Lanka. It found that, had those circumstances occurred, he would have mentioned them, even briefly, during his entry interview rather than indicating that he did not have any ongoing harassment problems. The Tribunal found that the appellant had fabricated his claims to have been required continually to report and to have been targeted by the authorities until he left in 2012. 12 It found that, although the appellant had experienced some problems as a young Tamil male during the civil war and in its immediate aftermath, he had not experienced ongoing problems and that there were no ongoing suspicions held by the authorities about him having any involvement with the LTTE. The Tribunal did not accept that, at the time the appellant left Sri Lanka, he had any suspected or actual links with the LTTE or that he was at risk of serious or significant harm for the purposes of s 36(2)(a) and (aa) of the Act. Accordingly, it found there was no real chance that he would be at risk for reasons of any actual or imputed suspicions that he was connected to the LTTE or because he was a young Tamil male. 13 The Tribunal also rejected the two claims relating to his being a failed asylum seeker and being subject to the risk of serious or significant harm were he to be returned and charged with leaving Sri Lanka illegally (being the basis of the appellant's grounds in the Court below). 14 The appellant had sought an extension of time under s 477 of the Act to bring his proceedings in the Federal Circuit Court. This application was rejected initially but, on appeal, Flick J set that decision aside and remitted the extension application to the Court below in AAV15 v Minister for Immigration and Border Protection [2015] FCA 700 on the basis that, although the intervening decision of the High Court in WZAPN 254 CLR 610 had made one of those proposed grounds of review unarguable, there was still then the potential for the other ground to succeed, namely, that when returned to Sri Lanka, potentially he would be held in poor conditions on remand on a charge of having left Sri Lanka illegally that could have engaged Australia's protection obligations. Subsequently, in 2017, the High Court made the second ground unarguable when it decided SZTAL 347 ALR 405.

The proceeding before the trial judge 15 When he appeared before her Honour the appellant was unrepresented. By that time the Full Court of this Court had decided SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556 and that decision, was then the subject of an application for special leave to appeal that had not been heard. Her Honour considered the argument on that point and rejected it, being bound to follow the Full Court's decision. She then turned to, and rejected, the only pleaded ground of review that was based on the other unsustainable limb of his claim, to be a failed asylum seeker who was at risk of being subjected to significant or serious harm were he returned to Sri Lanka. That ground had been precluded by the decision of the High Court in WZAPN 254 CLR 610. 16 Her Honour noted that, in his oral submissions, the appellant had taken issue with the conclusion of the Tribunal and that he had told her that he could not return to Sri Lanka as he would be at risk of harm. The trial judge found that, in substance, what the appellant was seeking to do was to engage the Court in impermissible merits review and that those arguments should be rejected. For those reasons her Honour dismissed the application with costs.

This appeal 17 The appellant's two grounds of appeal, in substance, seek to challenge the applicability of the High Court's decisions in SZTAL 347 ALR 405 and WZAPN 254 CLR 610 to his circumstances. 18 Those grounds are unarguable and cannot succeed. I reject them. 19 In his oral submissions to me today the appellant repeated what he had told her Honour, in substance, that, if he were returned to Sri Lanka, he would be in danger and that there were problems there. He accepted that he had not raised the issue of links between his family and the LTTE in his initial interviews with the Minister's Department and he sought to explain why when he made his submissions today. He said that others had told him not to say anything when he arrived in Australia about those links, but subsequently he decided to do so. He also said there had been recent problems in Sri Lanka in the last few days which again showed that he should not be returned. 20 Each of those matters is not a matter that the Court can consider. Rather, they involve the appellant inviting the Court to engage in a review of the merits of the Tribunal's decision which is not its function. I reject those arguments.

Conclusion 21 In those circumstances I am of opinion that the appeal must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.