AUG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The name of the first respondent be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BEACH J: 1 The appellant appeals from a judgment of the Federal Circuit Court given on 11 December 2017. The primary judge ordered that the appellant's application for judicial review of a decision of the second respondent (the Tribunal) be dismissed with costs. The Tribunal had affirmed a decision of a delegate of the Minister not to grant to the appellant a Protection (Class XA) visa. 2 I have determined to dismiss this appeal and to do so on its merits rather than as a default dismissal for non-appearance. There are several unusual features of this matter that make it appropriate to do so. 3 This appeal was previously listed for hearing on 22 May 2018 before another judge. But the date was vacated pending the determination of High Court appeals M75/2018 and S135/2018. Those appeals were from BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 and Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1. Those proceedings relevantly involved a consideration of s 438 certificates. On 13 February 2019, the High Court delivered judgment in the said appeals: Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599 (SZMTA). I will return to the s 438 certificate question later, which involves an issue with which I am not unfamiliar. Let me first deal with some background. 4 The appellant is a Hindu Tamil citizen of Sri Lanka who departed Sri Lanka by boat on 30 May 2012. He arrived in Australia on Christmas Island on 20 June 2012 and participated in an irregular maritime arrival entry interview on 10 August 2012. 5 He applied for a protection visa on 29 October 2012. The Minister's delegate refused to grant the visa on 7 March 2013. A previously constituted then Refugee Review Tribunal affirmed that decision on 16 June 2014. The appellant successfully sought review of that decision in the Federal Circuit Court, with the matter being remitted back to a newly constituted Tribunal on 26 June 2015. 6 The appellant appeared before such a Tribunal on 8 September 2015, accompanied by a registered migration agent. The hearing was conducted with the assistance of a Tamil interpreter. On 9 February 2016, the Tribunal affirmed the delegate's decision. 7 The appellant's primary claims for protection were the following. 8 The appellant claimed that his father was detained for questioning about possible Liberation Tigers of Tamil Eelam (LTTE) links in 1992. After his release, the father moved to Trincomalee, but returned to Negombo to visit from time to time. His father's movements attracted the attention of the Criminal Investigations Department (CID) which led to further scrutiny and questions. In or around 2006 his father left to work in Saudi Arabia. The appellant claimed that he would be persecuted in Sri Lanka due to his father's links with the LTTE. 9 Further, the appellant claimed that in 2011 the appellant supported his local candidate from the United National Party (UNP), which was the main opposition party. The appellant claimed that due to his support for this candidate the CID and others threatened him and came searching for him. He went into hiding before deciding to flee Sri Lanka. 10 The appellant also claimed that he would be imputed with having links to the LTTE and persecuted on his return to Sri Lanka due to having left Sri Lanka illegally and as a failed asylum seeker. 11 The Tribunal found that the appellant was "a very unreliable witness". In elaboration, the Tribunal's findings in respect of the appellant's claims were as follows. 12 The Tribunal did not accept that the appellant's father had "any kind of negative political profile with the authorities, whether or not he was briefly interrogated in 1992 (some quarter of a century ago at an early stage of a long-since ended civil war)", based on the father's travel on a Sri Lankan passport to Saudi Arabia, return to Sri Lanka, and then to Bahrain. It followed that the Tribunal did not accept that the authorities or anyone else considered there was a link between the appellant and the LTTE based on his father's activities. 13 The Tribunal accepted that the appellant supported the local UNP candidate in 2011 but gave this little weight. The Tribunal gave more weight to the changed political circumstances with the UNP in government. The Tribunal did not accept that the appellant's support for the UNP caused political opponents or the authorities to link the appellant with the LTTE, and found that the appellant's claims of harassment on this basis were "inconsistent and entirely unreliable". The Tribunal did not accept that the appellant's brother was in hiding and gave no weight to the 19 May 2015 letter which the appellant produced after the hearing. 14 The Tribunal accepted that returnees to Sri Lanka were subjected to questioning in relation to their identity and possible breaches of immigration laws upon arrival, but found that this was as a result of a law of general application. The Tribunal was not satisfied that the conditions faced whilst being questioned at the airport or in remand would rise to a level of serious or significant harm. Further, any consequence of a breach of the Sri Lankan Immigrants and Emigrants Act 1949, as a person who left Sri Lanka illegally or as a failed asylum seeker, would be as a result of the non-discriminatory application of that legislation and would result in no more onerous penalty than a monetary fine. Further, the appellant's status as a failed asylum seeker would not give rise to imputations, separately or cumulatively, that he supported the LTTE so as to give rise to a real chance of persecution in Sri Lanka. 15 The Tribunal, having given weight to UNHCR observations and the unremarkable circumstances of the appellant's family in Sri Lanka, also concluded: [h]aving considered all of the evidence before me, including all of the factors that the applicant asserts as distinguishing himself from others in his family, I am not satisfied that the applicant faces a real chance of persecution in Sri Lanka in the reasonably foreseeable future for separate or cumulative reasons of being a male adult Hindu Tamil with links to the North or East. 16 The Tribunal therefore did not accept that the appellant was a person to whom Australia owed protection obligations for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth). 17 Further, the Tribunal also found that s 36(2)(aa) of the Act did not give rise to protection obligations. The appellant's claims either failed for lack of credibility or due to cumulative factors that failed to satisfy the 'real risk' test. 18 Before the primary judge, whose reasons if I might say so were both careful and cogent, the appellant who was legally represented raised two grounds of review. By ground one, the appellant contended that the Tribunal misapplied the legal test with respect to the viability of internal relocation by applying a test of whether the appellant would be able to relocate to a different neighbourhood in or near Negombo "safely and practicably". The appellant contended by ground two that the Tribunal's finding that the appellant's father had travelled on a valid passport was affected by jurisdictional error as there was no evidence upon which the Tribunal could make such a finding, alternatively the finding was not open to it. On 11 December 2017, the primary judge dismissed the application with costs. 19 In relation to ground one, the primary judge noted that there was an insuperable difficulty with this ground in that the Tribunal did not find that the appellant faced a real chance of serious harm or a real risk of significant harm in any part of Sri Lanka. Accordingly, no relocation finding was called for. The primary judge found that the Tribunal's reasoning disclosed no finding of fact that the appellant held a well-founded fear of suffering serious harm. Rather, the impugned passage reflected the Tribunal's reasoning and thought processes in response to the evidence given by the appellant at the hearing. 20 With respect to ground two, the primary judge found that it was incorrect to assert that there was no evidence before the Tribunal to suggest that the appellant's father was in possession of a valid passport. The primary judge noted that the evidence given to the delegate to the effect that his father migrated to Saudi Arabia, apparently lawfully, on a passport in his own identity in or around 2006 was sufficient to displace a "no evidence" argument. The primary judge also found that it was open to the Tribunal to find that the appellant's father did possess a legitimate passport notwithstanding the appellant's apparent vacillation on this aspect. 21 Further, the primary judge also considered whether there was any error in relation to a s 438 certificate that had been issued, although this was not a ground that had been raised by the appellant. But he found that the document covered by the certificate was not "adverse to the applicant, relevant, or significant to the decision to be made". 22 In the appeal before me the appellant has raised the following ground of appeal (without alteration): "1. The Fcc Judge his Honour committed legal errors jurisdictional when dismissing proceedings. The Judge failed to consider all of the grounds that the Appellant raised in a proper and legal manner." 23 So, the appellant has merely in substance repeated his grounds below. With respect to the first ground raised before the primary judge, the primary judge was correct to conclude that the Tribunal did not in fact make any necessary internal relocation finding. The Tribunal's impugned finding was to be read in the context of the decision as a whole. In that context, as the Tribunal did not accept that the appellant's fear of harm was well-founded, there was no need to consider whether it was reasonable for him to relocate within Sri Lanka. No error is disclosed in the reasoning of either the Tribunal or the primary judge. 24 With respect to the second ground raised before the primary judge, the primary judge was correct to find that it was incorrect to assert that there was no evidence before the Tribunal to suggest that the appellant's father was in possession of a valid passport. In order to succeed on a "no evidence" argument, the appellant is required to demonstrate that there was no evidence at all before the Tribunal upon which its finding was based. But the evidence the appellant gave to the delegate was sufficient to displace a "no evidence" argument. 25 Further, the primary judge was correct to conclude that it was in any event open to the Tribunal to find that the appellant's father did possess a legitimate passport. There was no evidence before the Tribunal nor any positive assertion made by the appellant that the appellant's father's passport was fraudulently obtained. The high water mark of the appellant's position in this regard appeared in his submission to the original Tribunal as follows: "I did not say at the interview that my father had a legal passport. I never saw his passport, I don't know if he bribed the officers at the airport or if he had a false passport. I just said he would need a passport to leave from the airport." 26 The appellant's position, taken at its highest, was that it was possible that his father had departed Sri Lanka on a fraudulent passport. But the Tribunal was not obliged to accept that this was the case. In the absence of evidence to the contrary, it could not be said that the Tribunal's factual finding that the appellant's father was in possession of a genuine passport manifested jurisdictional error. No error is disclosed in the reasoning of either the Tribunal or the primary judge on this aspect. 27 Let me conclude by saying something on the s438 certificate question. 28 The primary judge had regard to the affidavit of Mr Andrew Keevers filed in those proceedings. That affidavit annexed a copy of the document the subject of the s 438 certificate to which the primary judge had regard. But his Honour correctly identified that the document was not "adverse to the applicant, relevant, or significant to the decision to be made." The primary judge held, in my view correctly, that there was no detriment or practical injustice suffered by the appellant from the failure by the Tribunal to disclose the existence of the s 438 certificate to the appellant. 29 In SZMTA, Bell, Gageler and Keane JJ concluded that the mere non-disclosure of the actual certificate issued by the Minister's Department under s 438 was not, itself, sufficient to establish jurisdictional error. At [38], they said: Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision. 30 In the present case the appellant cannot point to any "practical injustice" that he has suffered. The document the subject of the certificate could not have had any material impact on the issues on the review as it lacked any connection to the appellant's claims. In those circumstances, there was no denial of any opportunity for the appellant to make submissions that were material to the Tribunal's decision. That is, he was not denied an opportunity to make submissions on any matter that would have realistically made a difference to the outcome of the Tribunal's decision. 31 For the foregoing reasons, the appellant's appeal will be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.