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[2016] FCAFC 74
Federal Court of Australia (Full Court)
2016-06-23
Mr J, Allsop CJ, Bromwich JJ
Original judgment source is linked above.
THE COURT: 1 This is an appeal from orders of the Federal Circuit Court of Australia made on 17 November 2015, dismissing an application for judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 13 May 2015. The Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa. 2 For the reasons that follow the appeal should be dismissed, notwithstanding some reservations about how the Tribunal went about its task.
Claims 3 The appellant is a 28 year old Tamil citizen of Sri Lanka. He is of the Hindu faith. He arrived at Christmas Island on 2 July 2012. On 28 November 2012, he applied for a protection visa. 4 As the delegate for the Minister recorded, the appellant's main reason for seeking protection was based on an asserted fear of being seriously harmed or killed by the Criminal Investigation Division (CID), the police more generally, the Sri Lankan army, or other political or military groups working with the army or government. The appellant claimed he was a target arising from or motivated by his Tamil ethnicity, his Hindu religion, his imputed political opinion as a supporter of the former separatist group known as the LTTE (the Liberation Tigers of Tamil Eelam), and being perceived as being within the particular social groups of wealthy Tamils, and people who left Sri Lanka unlawfully. 5 In support of his claims for protection, the appellant claimed to have been terrorised by a local Sinhalese man, referred to by the primary judge as "K". The appellant said K had dominated and terrorised his village for the past five years, and was protected in his illegal activities by his connections with the army and the CID. He also claimed to have been abducted and held by K. 6 In a statutory declaration dated 25 November 2012 in support of his protection visa application, the appellant said that he had joined a Hindu welfare society known as the Health Infrastructure Development and Humanitarian Society Group when he left school in 2004. He said that the group organised festivals and showed special guests around, such as members of parliament.
Before the delegate 7 In this case the delegate's findings are relevant because of the way in which the appellant brings his case to this Court. It suffices to say for present purposes that the delegate accepted the appellant's account as to who he was and where he lived, and also his claims to have been twice rounded up by the army in the later stages of the civil war between the government and the LTTE. The delegate did not, however, accept the appellant's account of most of the events upon which his claims for protection depended, including as to abductions, fear of arrest and being of any ongoing interest to the CID or other security agencies. 8 The delegate's refusal to accept the appellant's account of key events upon which claims were based meant he could not reasonably have approached the merits review process in the Tribunal with any sense that his credibility was not going to be a potential issue. That was reinforced by the Tribunal telling the appellant at the commencement of the hearing that even if the Department of Immigration had believed some or all of his evidence, it had to make up its own mind about whether or not he was telling the truth. 9 At a departmental interview on 20 May 2013, the appellant was asked whether he had membership of any groups or associations. He said that he had been a temple volunteer with the Hindu welfare society for five years from 2004, and secretary of a fisherman's association for two years until 2009 or 2010 (also referred to by the appellant as a fisherman's cooperative and as a fishing committee). The delegate specifically noted that the appellant did not make any claim for protection based on either membership of these bodies or the roles he had with them.
Before the Tribunal 10 The appellant did not fare any better before the Tribunal than before the delegate. For reasons that are factually complicated, adverse credit findings caused the Tribunal to disregard even some apparently inconsequential aspects of his account of events. A number of those adverse findings were not apparently necessary for the Tribunal's decision, even in an extended sense of being contextually important. In a more contentious set of circumstances this blanket approach might give rise to serious concerns about whether a protection visa applicant's claims had been fully addressed and the Tribunal's statutory task properly performed. 11 Care needs to be taken by the Tribunal to ensure that blanket, reflex or exaggerated adverse credit findings do not take the place of a proper examination of a visa applicant's claims as required by s 414 of the Migration Act 1958 (Cth). When adverse credit findings of this kind are made, there is a risk that the Tribunal will lose sight of and not discharge its statutorily-mandated task, including by overlooking a material claim or part of a claim that an applicant has made. Credibility will not always be a complete answer to every integer of such a claim. 12 At the hearing of the appeal, we expressed some concern about the nature and extent of the adverse credit findings made by the Tribunal in this case. Counsel for the Minister addressed the Court about how the adverse credibility findings had been arrived at and used by the Tribunal, especially by reference to the transcript of the Tribunal hearing. This allayed our concerns in the sense that it was sufficiently clear that the adverse credibility findings made by the Tribunal did not ultimately compromise the essential features of the merits review process in relation to the appellant's claims. 13 With this in mind, we return to the Tribunal's findings and reasons. After giving a narrative of the appellant's claims, the Tribunal addressed at some length its concerns about the appellant's credibility. The Tribunal considered four topics: (1) when the appellant said he went into hiding prior to leaving for Australia; (2) the money the appellant said was paid to K; (3) a letter that was given to a politician about the abduction of his cousin and K's reaction to that letter; and (4) a claim of sudden interest being taken in the appellant by K. The Tribunal did not accept the appellant's account on each of those topics, largely due to changes in the appellant's accounts of what had happened to him. 14 As we have already indicated, in addressing its credibility concerns, the Tribunal's concerns accumulated to the point where virtually nothing the appellant said of importance to his claims, and a number of things of little apparent importance, were believed. However it is apparent from the hearing transcript that the Tribunal was trying, by open-ended and non-leading questions, to obtain a consistent and coherent account from the appellant. As we have already stated, we might have reached a different conclusion about the Tribunal's approach to its task based on the reasons for decision alone and without the benefit of the hearing transcript. 15 We turn briefly to the four topics in order to explain how it was that the global adverse credit findings were arrived at, which as we have already observed went further than was necessary to address the appellant's claims for protection. 16 As to the first topic, the appellant's account as to when he went into hiding prior to leaving for Australia shifted several times between different dates in April and May 2012. His account concluded with an assertion that, as a result of having earlier been abducted and held by K, on 19 April 2012 he obtained a visa for India for the purposes of fleeing Sri Lanka, then returned to work for several weeks, then went into hiding before finally departing for Australia. The Tribunal regarded the appellant's final claimed sequence of events as not being credible, especially as the date upon which the appellant said he went into hiding changed three or four times. 17 On the second topic of payments to K, the appellant's visa application statutory declaration dated 25 November 2012 included an account of a demand for payment being made by K, but no payment being made. That statutory declaration indicates that a deliberate decision had been made not to pay K. At the Tribunal hearing, the appellant said substantial amounts of money had been paid to K. The Tribunal regarded this as a significant discrepancy. 18 On the third topic of writing a letter to a politician about the abduction of his cousin, and K's reaction to that letter, the appellant's account in his 17 February 2015 pre-hearing statement to the Tribunal was that K, in response to the letter, had sought to intimidate the appellant's aunt in his presence in 2011. The appellant's statement said that K had told his aunt in his presence that K had killed the appellant's cousin and not to waste time looking for her. At the Tribunal hearing, the appellant said he first had trouble with anybody beyond general army round-ups in April 2012, and that he first started to have trouble with K in February 2012. He did not say anything about the letter being referred to by K until that was raised by the Tribunal. The Tribunal considered the initial account given at the hearing to be different from the account given in the pre-hearing statement of 17 February 2015. The Tribunal's reasons record the appellant being given ample opportunity to mention this earlier 2011 encounter with K when he was initially questioned as to his difficulties with K, which is borne out by the hearing transcript. The Tribunal regarded the appellant's failure to mention the 2011 encounter when first describing difficulties with K at the hearing and instead for him to claim at that point that his difficulties with K began in February 2012 as not being credible. 19 The fourth topic of K's sudden interest in the appellant was approached by the Tribunal with scepticism. The Tribunal considered it was inherently unlikely that K, as a man with connections with the authorities, and who had carried out serious offences over a number of years, would suddenly take an interest in the appellant in circumstances where there had been a considerable earlier period in which K's interest could have occurred, during which nothing happened. The Tribunal regarded the late emergence of a claim of sudden interest by K as a fabrication designed to coincide with the appellant's departure from Sri Lanka less than two months later. 20 These four topics and the adverse conclusions made about each of them were considered cumulatively on the question of overall credibility. Except as to peripheral matters, the Tribunal decided the appellant was not a witness of truth and should not be believed in relation to a raft of his claims, both central and residual. As noted above, the Tribunal warned the appellant at the beginning of the hearing that it had to make its own assessment as to whether he was telling the truth. 21 The Tribunal did not believe the appellant's claim of having been abducted and imprisoned by K or any of the other claims concerning K, including threats of extortion. 22 Claims by the appellant that people had acted on K's behalf or on behalf of the CID were found to be false. Residual claims of having a record or file with the police, being questioned by the authorities about his movements, having problems with security forces while at school, and being harassed, rounded up or held by the army were all disbelieved. 23 The appellant asserted in his pre-hearing statement to the Tribunal that K did not like him because he was on various societies and committees. In that context, he referred to joining the fishing association in 2007, being secretary from around 2008 until he went to Colombo in 2011, when he became co-secretary (later referred to as vice secretary). 24 In pre-hearing written submissions made on the appellant's behalf to the Tribunal dated 19 February 2015 it was said he had a prominent position in the community, including membership of various committees which were relevant to his profile and to K's animosity towards him. It was submitted this needed to be explored further by the Tribunal. That further exploration took place when, during the Tribunal hearing, the appellant was asked about his involvement in the Hindu welfare society, and he said that the society had two duties, namely, to "help the injured" and to "organise the people"; and that he undertook these activities for the society, including organising the people for an annual festival in July each year. He was asked about the fishing association and said that it collected money and distributed it to fishermen, and that he attended monthly meetings, the last that he attended being in April 2012. 25 The Tribunal accepted that the appellant was the secretary and vice secretary of the fishing committee, and was a member of the Hindu welfare society. However, because he was found not to be a witness of truth, the Tribunal considered that there was no credible evidence of what he had done as secretary or vice secretary of the fishing association, or what he had done more generally for those organisations, and over what period. 26 As a result of the Tribunal accepting that the appellant had indeed occupied the position of secretary, it declined to wait to receive a further document to demonstrate that this position was in fact held by him. 27 The Tribunal found no credible evidence that the appellant or any member of his family suffered harm in Sri Lanka or that anyone there wished to harm him, nor any credible evidence of wealth, or perception of wealth, so as to ground that aspect of his claim. 28 After considering country information at some length, the Tribunal found that the appellant did not hold a well-founded fear of persecution for any Refugees Convention reason. Similarly, no basis for complementary protection was made out because the Tribunal found no substantial ground for believing that the appellant had any real risk of suffering significant harm as a necessary and foreseeable consequence of returning to Sri Lanka.
Before the Federal Circuit Court and on appeal to this Court 29 Two grounds of review were advanced before the primary judge. The first ground of review of an alleged breach of s 425 of the Migration Act was in substance that the appellant had been denied an opportunity to lead further evidence concerning his involvement with the fishing and Hindu communities. The primary judge referred to the Tribunal hearing transcript showing that almost at the end of the hearing the appellant said that he wanted to provide a document to the Tribunal, which would prove that he was the secretary of the fishing association. The Tribunal hearing transcript also showed that the appellant did not tell the Tribunal or otherwise suggest that this document was relevant to or would address anything else. 30 The primary judge dismissed this ground upon the basis that the Tribunal had, as indicated, accepted that the appellant had occupied the position of secretary of the fishing association. His Honour said that the Tribunal took that position into account and that the Tribunal declining to accede to the appellant's request did not reflect any failure to take into account the appellant's alleged profile in that role. 31 In this Court, the first ground of review was repeated as the second ground of appeal. The appellant, in written submissions and at the hearing of the appeal, asserted that the primary judge should have found jurisdictional error on the Tribunal's part when it failed to provide him with an opportunity to explain his activities and prominent role in the fishing association. However, as described above, the hearing transcript shows that the appellant was given ample opportunity to explain his activities and role in the fishing association. 32 Just before the hearing ended, the transcript recorded that the Tribunal twice asked the appellant whether there was anything further that he wished to say. The appellant's answer was, as stated already, that he wanted to provide a document to prove that he was the secretary of the fishing association. As noted at [26] above, the Tribunal declined to wait for the further document to be produced because it already accepted that the appellant held the position of secretary of the fishing association. In this Court, the appellant's counsel was unable to demonstrate there was any error in this respect. Counsel was also unable to show that the appellant had taken advantage of the opportunities afforded to him to demonstrate the existence of any prominent profile that might have made him a target on a Convention-related ground or afforded him a basis for complementary protection. Counsel for the Minister was able to show during the hearing of the appeal that repeated opportunities had been given at the Tribunal hearing to allow the appellant to demonstrate this profile. 33 For these reasons, we can discern no error in the primary judge's finding that the Tribunal did not err in declining to wait for the further document to prove a fact that was already accepted. The second ground of appeal must therefore fail. 34 Counsel for the appellant accepted that there was no independent operation for the first ground of appeal, which essentially raised the same issue as the second ground of appeal by a different route. Accordingly the first ground of appeal must fail as well. 35 It was also argued on behalf of the appellant that he was not put on notice that his credit was in issue. Following the adverse credit findings by the delegate, and the Tribunal making it clear at the commencement of the hearing that it would have to make its own assessment as to whether he was telling the truth, that argument cannot be sustained.
Conclusion 36 For the reasons stated above, the appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop, and Justices Kenny and Bromwich.
AZU15
Minister for Immigration and Border Protection