ACB16 v Minister for Immigration and Border Protection

The reasons of the Federal Circuit Court 6 The primary judge set out at [5]-[6] what the present appellant had said, as follows: In his Statutory Declaration dated 14 December 2012, which he provided as part of his Protection visa application, he made allegations concerning events which he claims led to him fleeing Sri Lanka and to his fear of returning there. He stated that on 19 July 2009 he was abducted by unknown persons and put in a white van… and that in early 2012 while working in a bus he had a confrontation with six Tamil men who were members of the Karuna group. They would not pay their fares and threatened to shoot and kill him…. In [11] of his Statutory Declaration he claimed that he and his family were staunch supporters of the Tamil National Alliance (TNA). In particular in [23] he stated that two of his cousins had been members of the Liberation Tigers of Tamil Eelam (LTTE). One cousin had jointed (sic) the LTTE in 1995 and fled to the United Kingdom in 2007 and continued to reside there. The other cousin was killed in action some time in 2006. Although the Applicant stated that he was fortunate not to be targeted by the authorities, he believed that he was at risk of being harmed by the Sri Lankan authorities due to his family connection with LTTE fighters. The Applicant also claimed to fear harm from the Sri Lankan authorities as a Tamil who had fled Sri Lanka illegally and sought asylum in Australia and to be at risk of harm from the members of the Karuna group involved in the alleged bus incident in 2012. 7 The primary judge noted that, in summary, the Tribunal was prepared to accept that the appellant had relatives who were involved in the LTTE but was not satisfied that the appellant's claims were credible in their entirety. The Tribunal pointed out a number of inconsistencies in the version of events given by the appellant since the lodging of his Protection visa application. The Tribunal was not satisfied that the appellant was ever abducted by men in a white van in 2009 or that he had been blindfolded, beaten or questioned about his relatives' involvement in the LTTE or any Tamil political party. The Tribunal observed that the appellant had not suggested that he had been subjected to any further threats or harm arising from either of his cousins' involvement in the LTTE or his relatives' involvement with the TNA during the three-year period between his alleged abduction in July 2009 and his departure from Sri Lanka in July 2012. 8 The primary judge noted, further, the Tribunal was not satisfied on the evidence that the bus incident in early 2012 involving members of the Karuna group actually occurred. In relation to the appellant's claim of fear due to his family connection with LTTE fighters, the Tribunal at [105]-[106] stated as follows: The Tribunal is prepared to accept that two of the applicant's cousins had links with the LTTE and that the applicant's relative, Yogarasa, and possibly his father, have links to, or are supporters of the TNA. The Tribunal is not satisfied that the applicant was or is a "staunch supporter" of the TNA but is prepared to accept that the applicant may have had some low level political involvement with the TNA by assisting Yogarasa to put up bill posters prior to 2009. The Tribunal is not satisfied, however, that these circumstances give rise to a real chance or risk of the applicant suffering serious or significant harm now or in the reasonably foreseeable future. The applicant has claimed that one of his cousins who was involved with the LTTE died in 2006 or 2007 and the other departed Sri Lanka for the United Kingdom around the same time. The applicant's father has not been questioned or threatened in relation to any LTTE links since 2003. The applicant's own evidence is that he was able to return from India in 2007, through the airport, without any difficulty. From that time until the applicant's departure in 2012 the applicant lived or worked in his home area in Eastern Sri Lanka without ever being approached by the authorities or questioned about his political activities apart from being caught briefly in a general roundup in 2008 prior to the cessation of hostilities. In 2012, the applicant obtained a Sri Lankan passport apparently without difficulty. These circumstances all indicate to the Tribunal that the Sri Lankan authorities did not have any interest in the applicant and were not genuinely concerned about his LTTE or other political connections or any other personal attribute. 9 The primary judge said the Tribunal's ultimate conclusion on the appellant's claims was expressed in [111] of its Decision Record: The Tribunal is not satisfied on the information before it that the applicant will be singled out or treated any differently upon return to Sri Lanka because he is a young Tamil male, has departed Sri Lanka illegally and sought asylum in Australia or because of any other personal attribute, including his family's LTTE and political links. Given the Tribunal's findings above, the Tribunal is not satisfied that the applicant's family's past connections to the LTTE or their or the applicant's own political activities would expose the applicant to real chance or risk of serious or significant harm in the course of processing at the airport, whilst in remand, in the course of sentencing or at any time upon return to his home area, given that the Tribunal is not satisfied that these circumstances have caused him any difficulty in the past. The Tribunal is supported in making these findings by the country information from UNHCR and the United Kingdom indicating that the Sri Lankan authorities are interested in identifying those with material links to the LTTE or who pose a present destabilising threat. The Tribunal is not satisfied that there is a real chance or risk that the applicant would be charged with, or suspected of having committed, any criminal or terrorism related offence other than having departed illegally. 10 The primary judge then considered the grounds in the application for judicial review. 11 As to ground 1, the primary judge identified the thrust of the submission on behalf of the applicant as being that while the Tribunal accepted that his client's cousins had LTTE links, it did not make a finding as to the allegation that they were fighters or combatants. In this respect the judge held, at [29], that the language used by the Tribunal did not indicate that the Tribunal had forgotten or overlooked the apparent assertion by the appellant that his cousins were LTTE fighters. It also did not establish that the Tribunal breached the well-established principle requiring it to deal with the case raised by the material or evidence before it and that if it failed to make a finding on "a substantial, clearly articulated argument relying upon established facts", that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction. Rather, the primary judge said, the Tribunal found that whatever the link or involvement the two cousins may have had with the LTTE in the past, it was not satisfied that the result was that there would be a real chance or risk that the appellant would suffer serious or significant harm now or in the reasonably foreseeable future if he were to return to Sri Lanka. In these circumstances, the judge said, it was not an essential legal requirement that the Tribunal make any specific or particular finding as to whether the two cousins were LTTE fighters or as to the precise role and nature of any fighting in which they may have been engaged. 12 At [34], the primary judge concluded that ground 1 failed. The judge said: The Tribunal did not commit jurisdictional error by failing to ask the correct question or failing to explore and consider the claims put forward by the Applicant. Rather, it fully and comprehensively considered those claims. Further, at [16] of its Decision Record the Tribunal correctly identified the real chance test and correctly applied that test at [104]-[105], [111], and [113]. 13 As to ground 2, the primary judge reproduced what the Tribunal had said at [79], as follows: The Tribunal put to the applicant country information from the UNHCR about the categories of people more likely to be at risk of harm in Sri Lanka. In terms of links to the LTTE, those at risk were people who held senior positions within the LTTE, LTTE cadres, fundraisers and propagandists or people with family links to people in those sorts of positions. The Tribunal noted that it did not appear that the applicant fell within any of those categories. The applicant had no response. 14 The primary judge said, at [38], that this paragraph merely recorded and summarised that, during the hearing before the Tribunal, it was put to the appellant that certain categories of persons were more likely to be at risk of harm in Sri Lanka than others. The Tribunal went on to refer to some of the six categories listed on page 27 of the UNHCR Report. The primary judge said the Tribunal was not purporting to set out any test at all in [79], let alone a legal test. Accordingly, ground 2 failed. 15 The primary judge also noted what he described as an apparent submission on behalf of the appellant that the Tribunal erred in not properly assessing "the current risk or the real chance of risk" to the appellant in 2015 because it wrongly had regard to events that occurred between 2006 and 2012. This submission was also considered by the judge and rejected, with reference to Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 575.

The submissions of the parties 16 The appellant filed no written submissions. The appellant was absent when the appeal was called on for hearing. I admitted into evidence communications sent by the Minister's solicitors to the appellant notifying him of the time and place for hearing. Those communications were unanswered. 17 In his submissions, the Minister first noted that the notice of appeal erroneously stated that the appellant required leave to appeal, which he did not. The Minister submitted that no particulars had been provided to make the sole ground of appeal meaningful. Before the Federal Circuit Court the appellant's solicitor confined the grounds of review argued before the primary judge and those grounds were comprehensively addressed by the primary judge. Further, the appellant had not identified the "relevant consideration" that was allegedly overlooked by the primary judge or explained how he was denied procedural fairness, and it was not apparent that either of those allegations had any proper basis. The appellant was legally represented before the primary judge and his solicitor provided written submissions and appeared at the hearing on the appellant's behalf. The UNHCR Report was handed up at the hearing, received into evidence and expressly considered by the primary judge. No appellable error on the part of the primary judge was demonstrated and the appeal should be dismissed with costs.

Consideration 18 In my opinion, there is no substance in the sole ground of appeal to this Court: see [4] above. There is no basis for the contention that the primary judge did not consider all of the grounds raised. Next, no mandatory relevant consideration has been identified which the primary judge did not consider. Thirdly, the contention that the appellant was denied procedural fairness by the primary judge is unparticularised and has no basis. 19 It is necessary for an appellant to demonstrate error on the part of the primary judge. The appellant has not done this. 20 As to the grounds argued before the primary judge, I see no error in the reasons concerning ground 1, those reasons being at [23]-[34], or in the reasons concerning ground 2, those reasons being at [35]-[39].

Conclusion and orders 21 The appeal is 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 Robertson.