AOJ18 v Minister for Home Affairs

Federal Court of Australia (Full Court)|2018-12-07|Before: Colvin JJ

The appeal be dismissed.
The appellant pay the first respondent's costs to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The appellant travelled to Australia by boat from Sri Lanka in 2012. The boat was intercepted and he was taken to Christmas Island. His entry interview was conducted on 31 October 2012. His response to a number of standard form questions was recorded. As to the question 'Why did you leave your country of nationality?' his answer is recorded as 'Because of the threat of the army in Sri Lanka I left the country. I don't know for what reason they arrested me in 1998 also they harassed me. Then again they took me in 1999. 28/05/2012 I was attacked while at home by I don't know who they were'. This appeal concerns the significance for the appellant's application for a protection visa of the claim in the last sentence, namely that he was attacked in his home in 2012 not long before he left for Australia. As to that claim, he said he believed that the attackers were associated with the Sri Lankan authorities.

The appellant's application for a protection visa 15 As we have indicated, the appellant's visa application was considered and refused. The appellant sought review by the Immigration Assessment Authority. The Authority affirmed the refusal. 16 An application for judicial review was dismissed by the Federal Circuit Court. The appellant now brings an appeal. A single ground is advanced in support of the appeal. It is expressed in the following terms: One of the [appellant's] claims was that in May or July 2012 a group of people who spoke Sinhala came to the [appellant's] home armed with chains and beat the [appellant]. The Immigration Assessment Authority ("the IAA") … found … that 'I do not accept that the applicant was beaten by the CID or others at his home in May 2012'. The IAA provided a reason for its finding that the CID did not attack and beat the [appellant] at his home in May 2012. However, the IAA provided no reason for its finding that persons other than the CID did not carry out the attack. In the circumstances, the Federal Circuit Court … should have found that IAA fell into jurisdictional error in not accepting that the [appellant] was beaten by 'others' at his home in May 2012.

The reasons of the Authority 17 At the outset of its reasons, the Authority accurately described the claims made by the appellant in support of his application for a protection visa in the following terms: He claims that he fears harm from the Sri Lankan authorities because he will be imputed with a Liberation of Tigers of Tamil Eelam (LTTE) profile. 18 After accepting the evidence of the appellant as to the beating and torture inflicted upon him in 1998 and 1999 (paras 11-12), the Authority found that there was no interest in the appellant by the Sri Lankan authorities from 2002 to 2004 (para 16). The Authority accepted that from 2008 when the appellant returned from abroad he was required to report regularly to authorities and it was plausible that he was mistreated by the authorities on occasions when he reported (para 22). However, the Authority found that the authorities had no interest in the appellant beyond him being a Tamil. It reasoned that because thousands of Tamils suspected of LTTE links at that time were detained, placed in rehabilitation or prosecuted and the appellant made no such claim it followed that he was not then suspected by the authorities of having such links (para 22). 19 As to the attack in the family home in 2012, the Authority noted inconsistencies in the account. Those were inconsistencies at least in the dates given and whether there was one man (first statement) or a number of men (second statement) involved in the attack. The Authority also found certain aspects of the events as described by the appellant to be implausible and did not accept his account for a number of reasons. The Authority provided reasons as to why it was of that view. Significantly, at the end of the relevant passage of reasoning (para 23), the Authority said: There is no indication that any other incident occurred at this time or that there was any other reason for the authorities to escalate their interest in the applicant beyond the already in place regular reporting and questioning. It is also difficult to accept that the CID had reason to beat him in May 2012 yet gave him permission to travel to India in the next month. I do not accept that the applicant was beaten by the CID, or others, at his home in May 2012. 20 It is significant that the conclusion was introduced by referring to whether there was any reason 'for the authorities' to escalate their interest. This indicates that the Tribunal was dealing with whether Sri Lankan authorities other than the CID may have attacked the appellant. This was consistent with the way the appellant's claim has been expressed in the submission and which referred to all government 'agents'. 21 Further, the focus on the CID in the reasoning of the Authority to this point is understandable because it was dealing with the basis for the appellant's belief that the CID was responsible for the attack. The Authority gave detailed reasons for its view that there was a proper basis for the belief that the CID was involved. The analysis assumed that the attack had occurred and assessed whether it might be concluded that the CID had been responsible. 22 The Authority then dealt with evidence as to what was said to have occurred after May 2012 and reasoned that those matters also supported its earlier conclusion. 23 Having regard to the fact that the claim made was that the appellant was at risk of harm from the authorities if he was to return to Sri Lanka and the claim from the appellant that he believed the persons who came to his home were from the CID, the finding that the appellant was not beaten at his home 'by the CID, or others' records a finding that the appellant was not beaten by the CID or other persons representing the Sri Lankan authorities. The way in which findings are expressed earlier in the reasons (particularly by finding there was no attack in July 2012, but then describing the attack in terms that assumed there were assailants at the appellant's home in May 2012) lend support for this view. 24 Further, in the conclusion as to the factual account (para 30), the Authority said: I have not accepted that a number of incidents occurred in the manner described by the applicant, nor have I accepted that beyond being a Tamil that he has an LTTE profile, or other profile of concern to the authorities. Despite my concerns about a number of claims, in particular those related to events after 2002, I accept that the applicant has experienced significant trauma in Sri Lanka and that this can be linked, at least partially if not fully, to his detention and torture in 1998 and 1999. Expressed in that way, the conclusion is not indicating a complete rejection of the appellant's account as to being harmed in 2012. There is no statement to the effect that the appellant was not attacked at his home in 2012. Rather, it can be seen that the focus of the conclusion is upon dealing with the claim that there was a risk of harm from the authorities by reason of an LTTE profile. The Authority has only made a finding as to whether the events described in May 2012 support such a claim. It has not dealt with whether there was harm inflicted on the appellant in 2012 by persons who were not associated with the authorities in Sri Lanka. Rather, it has found that there was no evidence of involvement of the authorities. Given the way the claim was advanced it was not necessary for the Authority to go further and consider whether others not associated with the authorities might have been involved.

The reasons of the primary judge 25 Before the primary judge, the appeal ground covering the claim concerning the events at the appellant's home in 2012 was to the effect that no reasons were provided 'for the finding that persons other than the CID did not carry out the attack'. It appears that before the primary judge (as on appeal) the Authority's reasoning was characterised as a rejection of the claim that the appellant was beaten. As we have explained, in context, the Authority's finding should not be read that way. 26 Nevertheless, the primary judge dealt with the ground as the basis that there had been a finding by the Authority that the appellant had not been attacked in his home in 2012 at all. The primary judge set out the Tribunal's findings which concerned whether the appellant had been attacked by the CID. His Honour then simply concluded: The Authority then found on the basis of those reasons that it did not accept that the applicant was beaten by the CID or others at his home in May 2012. That was an adverse finding that was open to the Authority for the reasons given by the Authority and cannot be said to be illogical or unreasonable. 27 So the case was dealt with below on the basis that there had been reasoning to support a conclusion that there had been no attack at the applicant's home in 2012. Contrary to the primary judge's finding there was no such reasoning. However for reasons we have given that error by the primary judge was itself premised on an incorrect understanding of the Authority's own finding. There was no finding by the Authority that the attack at the house had not occurred.

The appellant's contentions 28 Contrary to the submissions advanced for the appellant, the present case is not of the kind described by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. Those cases are concerned with decisions where there is no evident and intelligible justification for a decision made in the exercise of a discretionary power. 29 It was suggested that this was a case where the Authority should have considered a claim based upon whether there was a risk of harm from persons other than the Sri Lankan authorities from which the appellant would not be protected by the institutions required to maintain law and order. As to those instances where it is said that a claim that arose on the materials should have been considered even though it was not articulated as a claim by the applicant, the following passage in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J) was approved by the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70]: Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 30 A claim based upon alleged harm from persons other than the authorities was not appreciated by the Authority nor should it have appreciated that such a claim arose. This is not a case where it could be said that there was a claim of the kind alleged that arose in the circumstances presented to the Authority because the case advanced by the appellant was focussed consistently upon whether there was a risk of harm to him from the Sri Lankan authorities. 31 It has been held that the factual findings of the Tribunal must be rationally made and based on probative material and logical grounds. Further, there may be jurisdictional error where a finding on credit on an objectively minor matter of fact is used as a basis for the Tribunal to reject the entirety of the claimant's evidence. As to these matters, see: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]-[55]. The approach to be applied in considering whether there has been a jurisdictional error of that kind was recently summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]. Applying these principles, the finding that the Sri Lankan authorities were not involved in an attack at the appellant's home in May 2012 has not been shown to follow an illogical, irrational or unsupported reasoning process. There are many matters identified by the Authority to support its factual conclusion, including inconsistency in the appellant's accounts, the Authority's view as to the implausibility of particular matters and the conduct of the appellant in returning to his home after only one week away in India. As observed by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question in cases where unreasonableness in a conclusion reached as to factual matters is 'whether a decision-maker could reasonably come to the conclusion'. Where there is nothing more than an identification of matters that might cause reasonable minds to differ that requirement is not established. The submissions by the appellant did not rise above that character. 32 Even if, contrary to the conclusion we have reached, the Authority did find that the appellant had not been attacked at his home by anyone then that was an error that was immaterial. For reasons we have given, no claim was advanced by the appellant to the effect that he was exposed to a risk of harm from private persons whose activities were contained by the authorities or there was no protection from attacks by non-state actors: contrast Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1. On the contrary the appellant's claim was that he was not protected because it was the authorities who were responsible. Therefore, the material finding was whether the authorities were involved in the attack. Detailed reasons were given for concluding they were not involved and there is no challenge to that conclusion. Beyond that it was immaterial to the appellant's claim whether non-state actors were involved. An error that could not have resulted in a different decision does not give rise to jurisdictional error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31].

Conclusion 33 Therefore, no error has been demonstrated in those aspects of the decision of the Authority that dealt with the events in May 2012. 34 It follows that the primary judge was correct to find that the matters raised by the appeal ground did not demonstrate jurisdictional error and the appeal should be dismissed with costs. 35 I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Griffiths, Gleeson and Colvin.

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