AQN16 v Minister for Immigration and Border Protection

Summary of background facts 2 The following summary of the background facts draws substantially on the primary judge's summary and the reasons of decision dated 24 February 2016 of the Administrative Appeals Tribunal (the AAT). 3 The appellant is a citizen of Sri Lanka. He claimed to fear harm if he were returned to that country on the basis of his Tamil ethnicity and that he would have an imputed political opinion of being pro-LTTE. He also raised a claim to fear harm because of his membership of two particular social groups: (a) being a young Tamil male; and (b) being a Tamil person who was returning to Sri Lanka as a failed asylum seeker. 4 After the Minister's delegate decided on 16 July 2013 to reject the appellant's claim for a protection visa, the appellant sought a review by the AAT. 5 The appellant participated in three hearings before the AAT and was represented by a migration agent. 6 The AAT summarised the appellant's case in broad terms and made findings as follows: (a) the appellant was born in the northern province of Sri Lanka and is a Tamil. He travelled to Qatar in December 2011 and had remained there until May 2012; (b) the appellant claimed to fear harm of persecution by the Sri Lankan Army and by reason of him being a Tamil from a particular area, noting that he said that five of his relatives had been killed; (c) the appellant claimed that his problems began from around December 2010 when he commenced working in a telephone company as a sales representative. He claimed that two CID officers came to his home twice enquiring about him and he feared that he would be detained at the airport if he returned to Sri Lanka and then tortured or killed by the CID. He also claimed to be fearful of the Army, who had killed a friend of his and other Tamil youths while they were at the beach; (d) the appellant claimed that the CID and the Army would share information about him and that he would not be protected because both were instruments of the State; (e) the AAT expressly referred to the appellant's claims regarding his membership of a particular social group, namely young Tamil males from the northern province of Sri Lanka. It also referred to his claims concerning his status as a failed asylum seeker if he were returned to his home country; (f) the AAT was not satisfied of the appellant's claims to be a refugee and it found that some of his evidence lacked credibility, including his claims that his sister had been detained for one day in 1998 and questioned about LTTE connections. Reference was made by the AAT to the appellant's answers to some of the AAT's questions, which the primary judge described in [14] as "vague and unresponsive". The AAT identified inconsistencies in the appellant's evidence in a statutory declaration and statement dated May 2014, which contrasted with his evidence to the AAT. The AAT found that he was not a credible witness when regard was taken of the totality of his evidence; (g) the AAT did not accept the appellant's claims that the CID demanded money from him and threatened him or that he had left his job at the telephone company because of his concerns regarding the CID. Nor did the AAT accept his evidence that the CID had visited his home on several occasions and inquired about his whereabouts; (h) the AAT also found that the operation of Immigrant and Emigrants Act 1949 in Sri Lanka did not assist his claim to be a refugee; and (i) for substantially similar reasons, the AAT did not accept the appellant's claim that Australia owed protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

The proceedings below 7 The appellant raised four grounds of judicial review in his originating application. The first was that the AAT failed to consider integers of the social groups of which the appellant said he was a member. The second was that he was denied procedural fairness. The third was that the AAT committed jurisdictional error in respect of his likely detention if he returned to Sri Lanka. The fourth was that the AAT committed jurisdictional error in its findings concerning bail. 8 The primary judge summarised and rejected various submissions made by the appellant at the hearing, as set out in [31] to [37] of the primary judge's reasons for decision. 9 In addition, with specific reference to the four grounds of judicial review, each was rejected by the primary judge for the following broad reasons. 10 As to the first, the primary judge found that the AAT had correctly identified the social groups raised by the appellant and its adverse findings were open to it. 11 As to the second, the primary judge noted that no transcript had been produced, nor had the appellant advanced particulars of alleged procedural unfairness by the AAT. 12 As to the third, the primary judge stated that the AAT had taken into account poor prison conditions and, moreover, this ground could not succeed because the FCCA was bound by the Full Court's decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556. 13 As to the fourth, the primary judge stated that the AAT had expressly raised with the appellant the ability of his family to provide surety for him to obtain his release from detention if he were returned to Sri Lanka. The primary judge found that the AAT's findings concerning the appellant's ability to obtain bail were open to it.

The appeal 14 The notice of appeal filed on 14 July 2017 contained the following six grounds (without alteration): Ground 1 1. The applicant's (appellant's) agent provided a submission to the Refugee Review Tribunal ("the Tribunal) also refer to complementary protection in relation to the applicant's claims and in summary refer to the claimed threat from the CID and the Sri Lankan army to the applicant because of his risk profile and also refer to his likely treatment in detention and the prison conditions in Sri Lanka in the context that the applicant left Sri Lanka unlawfully and would face punishment for that reason if he returned to Sri Lanka [para 24]. On the question of whether the Tribunal considered the appellant's claims cumulatively, the closest finding by the Tribunal is in [paragraph 71] commencing: "The Tribunal after considering the applicant's claims both individually and cumulatively does not accept on the basis of the evidence and materials and information before it that the applicant faces a real chance of serious harm for a Convention bases reason if he returned to Sri Lanka either now or in the reasonably foreseeable future." 2. In W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 at [21] French J stated: "It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a convention reason, the Tribunal must have regard to the whole case advanced by the applicant-Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan's case, these were described in the submissions put to Katz J, as 'risk factors'. They were causative factors which might collectively engender the relevant risk. That is not the same as a cumulative concept of persecution itself which appeared to underpin the applicant's submissions. Authorities cited on behalf of the applicant did not case much light on the submissions in this respect. The observations of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 related to the requirement that the delegate '...consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the 'real', as distinct from fanciful, 'chances' would bring if the applicant were to be returned to China." 3. The Tribunal did not consider whether, considering the applicant's claims cumulatively or collectively, he had a well-founded fear of persecution. If so the Tribunal fell into jurisdictional error. The Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error. Ground 2 4. One claim by the applicant which was before the Tribunal was that, since coming to Australia in 2012, the Sri Lankan authorities (CID) had come looking for the applicant and had warned the applicant's sister that they would arrest him on his return to Sri Lanka. The Tribunal failed to deal with this claim adequately in assessing the genuine fear of the appellant to return to Sri Lanka. Federal Circuit Court Judge Street erred to hold that it was a jurisdictional error. Ground 3 5. The Tribunal, after noting in [paragraph 73] of its decision accepts that "there are circumstances in which an incident of imprisonment and the circumstances of the particular imprisonment may constitute degrading treatment or punishment." However, the Tribunal failed to consider whether it amount to 'significant harm' within the meaning of section 5(1) and section 36(2A) of the Migration Act 1958. This was a jurisdictional error. Federal Circuit Court Judge Street should have found that it was a jurisdictional error. 6. In November 2016, the High Court granted the applicant in SZTAL v Minister for Immigration and Border Protection special leave appeal from the Full Federal Court decision. The appeal was heard by the High Court on 5 April 2017, and the High Court has reserved its decision. In the event the appeal succeeds, the appellant's ability to raise this point at a later stage is preserved. Ground 4 7. The applicant stated that the harm he would face if he were to return to Sri Lanka is due to the essential and significant reasons of his real or imputed political opinion as supporter of LTTE and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95]. The Federal Circuit Court Judge Street would have found the Tribunal's failure to consider this was a jurisdictional error. Ground 5 8. The Tribunal fell into jurisdictional error in finding that the "applicant was not a person of interest to the Sri Lankan authorities if he were to return to Sri Lanka." This was a jurisdictional error. Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error. Ground 6 9. The Tribunal alleged in general terms, the situation for Tamils in Sri Lanka in relation to their civil and human rights has improved contrary to the overwhelming independent country information on human rights in Sri Lanka. However, the DFAT reports do not follow that the situation will continue to improve or satisfactory. Particulars: a) Where the political situation in a country is "fluid", political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating)-of the political situation in Hungary and Poland in recent years. b) It is reported in the Colombo Telegraph November, 16, 2016 that the Executive Director of the International Truth and Justice Project, Yasmin Sooka said, "It requires political will and a commitment on the part of the government of Sri Lanka to carry out a comprehensive security reform programme which is sadly missing in Sri Lanka." c) Citing the report "Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016", "Intelligence and security operatives continue to target Tamils for illegal detention in secret sites and inflict on them horrific torture and sexual violence with impunity, despite the change of government in January 2015," the Executive Director of the International Truth and Justice Project, Yasmin Sooka who also said: "Torture and abduction are so systematic and entrenched in the DNA of the security forces that even realignment of political parties in parliament and the new government under President Srisena are not able to stop these crimes. It requires political will and a commitment on the part of the government of Sri Lanka to carry out a comprehensive security reform programme which is sadly missing in Sri Lanka." d) Kasun Ubayasiri, Lecturer, School of Humanities, Griffith University states, "Australian government has become the great defender of Sri Lanka's (and Australia's) insistence that the end of the civil war means an end to persecution ignores considerable anecdotal evidence of continued ethnic intimidation and a rise in Buddhist-nationalist violence." It was reported in the article "War is over, but not Sri Lanka's climate of violence and threats", July 14, 2014 5.52am AEST The Conversation Academic rigour. Journalistic Flair. e) UN agency says "government torture and abductions continue in Sri Lanka" wrote by Saman Gunadasa, 19 December 2016 at World Socialist Web Site citing the comments by Juan E. Mendez, the United Nations' special rapporteur on Torture, "Contrary to the insistence of President Sirisena and Prime Minister Wickramasinghe that their administration represents "good governance", CAT (Convention Against Torture) makes it clear that seven years after the defeat of the separatist Liberation Tigers of Tamil Eelam (LTTE) in 2009, Colombo's police­state apparatus is still being used against the working class and oppressed mases. The report said that these anti-democratic methods were covered up by the judiciary and that "neither the Attorney General nor the judiciary exert sufficient supervision over the legality of the detention or the conduct of police investigations to prevent this practice. f) The applicant states that this process of the Tribunal was unreasonable. The Tribunal failed to explain why it preferred the DFAT reports in the review materials in light of the very serious allegations made in the country "Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016" about the Sri Lankan Authorities. g) The Federal Circuit Court Judge Street should have held the failure to consider these information by the Tribunal in its review is a jurisdictional error.

The appellant's request for an adjournment 15 When the appeal was called, the appellant, who represented himself and had the assistance of an interpreter, sought an adjournment for at least three months because of a claimed medical condition. My reasons for refusing that request are as follows. 16 On Sunday 19 November 2017 at 8.42pm, the evening before the hearing of this matter, the appellant sent an email to the Court Registry that was addressed to my associate in which he requested an adjournment. The appellant said that he had been suffering from "severe breathing problems, snoring with sleep apnoea". He said he had been referred to the Royal Prince Alfred Hospital Sleep Unit by his GP. He said that he had seen a Professor Brandon on 15 November 2017 and needed to have an "urgent sleep study" and treatment. He said that he is very tired. The request for an adjournment was opposed by the Minister. 17 The appellant relied upon a document dated 14 November 2017 from a doctor at the Park View Medical Centre. The document is a referral letter to a specialist and asked for a further opinion and management of possible sleep apnoea. 18 The appellant was cross-examined by the solicitor for the Minister. The appellant appeared to be able to give his evidence coherently and lucidly. He gave evidence that he received an email dated on or about 31 October 2017 which stated that his appeal would be heard on 20 November 2017. He said that he only received a copy of the appeal book the week before last. He acknowledged, however, that he had a copy of the green book which had been used in the proceedings below and that he received a copy of the primary judge's reasons for judgment at the time that he filed his notice of appeal on 14 July 2017. 19 The appellant said that he was suffering from sleep apnoea at the time he prepared his notice of appeal. That notice of appeal contains some six grounds which are grounds which seem to have been carefully prepared. There is no evidence that his capacity to prepare the notice of appeal was affected by any medical condition. The appellant was put on notice earlier today that his request for an adjournment was opposed by the Minister and that he needed to supply stronger relevant evidence of his medical condition. 20 There is no independent medical evidence before the Court that provides a basis for finding that the appellant is unable to present his case today because of his medical condition. There is no copy of any report by Professor Brandon, or independent report of the medical treatment that the appellant received at the Royal Prince Alfred Hospital Sleep Unit. The only independent medical evidence is the referral letter dated 14 November 2017, which falls well short of saying that the appellant is unable to conduct his appeal today. For those reasons the request for adjournment was refused.

The parties' submissions summarised 21 The appellant did not file an outline of written submissions. He was invited to make oral submissions on why the Court should grant leave for him to rely on grounds 1, 2, 4 and 6 in circumstances where the Minister opposed those grounds on the basis that they had not been run below. He was also invited to make oral submissions on grounds 3 and 5. He said that he had nothing to add because he was unable to participate in the proceedings. 22 The Minister filed a written outline of submissions. It is unnecessary to summarise those submissions because they are largely reflected in the reasons given below for rejecting each of the six grounds of appeal. It should be noted, however, that the Minister opposed the Court granting leave to the appellant to raise grounds 1, 2, 4 and 6, which were not advanced below and therefore required leave (citing Metwally v University of Wollongong [1985] HCA 28; 158 CLR 447; 60 ALR 68 at 71). The Minister's opposition was based on the contention that each of these proposed grounds lacked merit.

Disposition of the appeal 23 It is convenient to deal with each of the six grounds of appeal in turn. 24 (a) Ground 1: There are some obvious difficulties with this proposed ground of appeal. 25 First, the claim that the appellant's claims had not been considered cumulatively flies in the face of the AAT's reasons for decision, which explicitly state in [71] that the claims had been considered both individually and cumulatively. There is no reason to doubt the accuracy of that statement. 26 Secondly, as the Minister pointed out, this ground was not run below and requires leave to be raised for the first time. The proposed ground is entirely lacking in merit for the reasons given immediately above. In those circumstances, leave should not be granted to the appellant to raise ground 1 but, even if such leave were granted, the ground would have to be rejected. 27 (b) Ground 2: This proposed ground asserts that the primary judge erred "to hold that it was a jurisdictional error" for the AAT to fail to deal adequately with the appellant's claim that the CID had come looking for the appellant and had warned his sister that he would be arrested if he returned to Sri Lanka. Again, there are obvious difficulties with this ground. First, it was not run below and the appellant requires leave to raise it on the appeal. Such leave should not be granted because the ground is lacking in merit, for reasons which will now be explained. 28 Secondly, even if the appellant were permitted to raise this ground for the first time, it would have to be rejected. That is because the particular claim was considered and rejected by the AAT. This is evident from [67] of the AAT's reasons for decision. There, the AAT explicitly stated that, because of its adverse assessment of the appellant's credibility, it did not accept that the CID visited his home in May 2012 and spoke to his sister about his whereabouts or that the CID had questioned his sister in December 2011 about his whereabouts. 29 To the extent that this ground relates to events which the appellant alleged occurred after he came to Australia (on 20 June 2012), no such claim was made in the appellant's statutory declaration dated 10 November 2012 in support of his application for a protection visa. Nor is there any reference to the appellant having made any such claim in the reasons for decision of the Minister's delegate dated 16 July 2013. The appellant's migration agent provided the then Refugee Review Tribunal with a submission dated 22 May 2014. There is a reference on page 3 of that submission to the appellant's sister having been arrested and questioned by CID officers in 1998 because she was a Tamil from a Northern Province. At page 19 of the submission, reference is made to the appellant's "extended period of time residing in Australia, a country with a significant Tamil diaspora, may exacerbate the risks that he already faces of an imputed LTTE connection". Notwithstanding that a subsequent section of the lengthy submission was directed to the topic of "Threats from CID and SLA", no claim was made to provide a factual foundation for ground 2. 30 The appellant also provided the then Refugee Review Tribunal with a witness statement dated 29 May 2014 in support of his claim that he had been harassed and threatened by Sri Lankan authorities. He made express reference in [5] to him having been "personally questioned, harassed and threatened by the CID three times and my family; in particular my sister, was questioned three times as well". In [12] of his witness statement, the appellant said that in December 2011, after he had left Sri Lanka for Qatar, the CID came looking for him at his home and that his sister told them that he was overseas. He then said that, sometime in May 2012, the CID came looking for him at his home and that his sister told them again that he was still overseas. These matters all relate to a time before the appellant came to Australia. The appellant made no claim in his witness statement dated 29 May 2014 that the CID had contacted his sister during the time that he was in Australia, i.e. post 20 June 2012. 31 The appellant's migration agent made a further detailed written submission dated 19 June 2014. That submission contained no claim which would provide a factual foundation for ground 2. 32 Further written submissions dated 16 February 2016 were provided by the appellant's migration agent to the AAT. These submissions were made following the AAT's hearing. Again, there is nothing in this submission which provides an adequate factual foundation for ground 2. 33 For all these reasons, ground 2 must be rejected in circumstances where the appellant is unable to point to anything in the evidence to support the assertion that he made a claim that, since coming to Australia on 20 June 2012, the CID had warned his sister that he would be arrested if he returned to Sri Lanka. 34 (c) Ground 3: This ground must be rejected in the light of the High Court's recent decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. 35 (d) Ground 4: This ground is poorly expressed but it appears that the appellant proposes to contend that the primary judge erred by failing to hold that the AAT did not consider his claim to be at risk of harm because of his imputed political opinion in support of the LTTE. To the extent that this ground reflects ground 1 of the judicial review application below, no appealable error has been demonstrated in relation to the primary judge's reasons for rejecting the ground. 36 To the extent that the ground raises new matters which were not run below, leave to raise the ground is required but is refused because of the lack of merit. On the basis of the country information before it, as well as the appellant's own evidence and the AAT's previous adverse findings concerning the appellant's credibility, the AAT was not satisfied that the appellant would face a real chance of suffering harm on this asserted basis (see the AAT's reasons at [65]-[73]). Ground 4 is rejected. 37 (e) Ground 5: The Minister did not claim that the appellant required leave to raise this ground. In my view, however, ground 5 lacks any merit. It effectively amounts to an expression of the appellant's dissatisfaction with the merits of the AAT's finding of fact that he was not a person of interest to the Sri Lankan authorities. The primary judge was correct to reject this ground. 38 (f) Ground 6: This proposed ground raises some difficulties having regard to the deficiencies in its expression. It appears to challenge the AAT's conclusion that there has been an improvement in the civil and human rights of Tamils in Sri Lanka because of what is claimed to be "overwhelming independent country information on human rights in Sri Lanka". 39 It is evident from the AAT's reasons for decision that it had regard to a range of country information, including country information provided to it by the appellant's migration agent. For example, there is a reference to country information reports in [46]ff. And at [60] the AAT made express reference to DFAT country reports which indicate that "successive Sri Lanka (sic) governments have made efforts to address ethnic and linguistic tensions in relation to historical conflict between Tamil and Sinhalese people and particularly in relation to education and employment". Reference was then made to the DFAT December 2015 country report which indicated "that the current Sri Lankan government has a more proactive approach to human rights and reconciliation". And in [70], the AAT stated that it accepted that the DFAT reports provided "recent and credible information relevant to the applicant's claims" (see also [72]-[74], where further references are made by the AAT to country information). 40 It was a matter for the AAT to determine the weight it gave to country information (see, for example, VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). It was open to the AAT to prefer the material contained in the DFAT reports which are referred to above. Thus, even if the appellant were granted leave to raise this fresh ground which was not run below, it would have to be rejected because it lacks any merit. Ground 6 is rejected.

Conclusion 41 For these reasons, the appeal will be dismissed and the appellant ordered to pay the Minister's costs, as agreed or assessed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.