BOG16 v Minister for Immigration and Border Protection

GROUNDS OF APPEAL 8 The appellant's notice of appeal filed in this Court on 17 September 2018 sets out the following two grounds of appeal: 1. The Federal Circuit Court erred in not finding that the Second Respondent ("the Tribunal") fell into jurisdictional error in that it failed to consider relevant considerations by failing to consider claims, or integers of claims, or information required by the Act and the law to be considered. Particulars (a) The Tribunal accepted "that the Army may have questioned the applicant when he returned … in 2010 …because he had returned after a four year absence, and that the Army may have beaten him or otherwise mistreated him during this questioning." (Court Book 420, [12]) (b) The Tribunal "accepts that [the applicant] may have been told to report." (Court Book 421, [14]) (c) The Tribunal "accepts that if the applicant was asked to report … in 2010 and did not do so, the Army may have gone to his home … in 2010 to inquire about him." (Court Book 422, [21]) (d) The applicant claimed and the Tribunal apparently accepted that the applicant's brother had suffered serious harm in Sri Lanka, and had been granted protection in Australia as a refugee, and had been found by the Tribunal member in that matter to have his name "on official records as a person suspected of some tenuous connection with the LTTE (it is unclear what)" (Court Book 365, [31]; 424, [33] ) (e) The Tribunal accepted that on return to Sri Lanka the police undertake and investigative process ….. which would address whether someone was…. trying to avoid, among other things, court orders or arrest warrants. This often involves ….contacting the person's claimed home address…." (Court Book 425, [38]; 424, [33] ) (f) Despite these findings, the Tribunal in the present matter failed to consider whether the applicant may have a real chance of longer detention, or other serious harm, by the cumulative effect of the inquiries on his return revealing his having been detained and beaten by the army, having been required to report weekly but having failed to report, been inquired for by the Army, and also by the fact that on his return he would be scrutinised as a person whose brother has his name "on official records as a person suspected of some tenuous connection with the LTTE". (g) The Tribunal further failed to consider what were the applicant's brother's connections with the LTTE (as opposed to his status as having protection in Australia), and whether these connections may separately or in conjunction with other factors cause the applicant to have a real chance of serious or significant harm. 2. The Federal Circuit Court erred in not finding that the Tribunal fell into jurisdictional error in that it failed to make inquiries as required by law, whether by the exercise of its power under section 424 of the Act to get information or otherwise. Particulars The Tribunal failed to exercise its power to get information or evidence in that it did not inquire into what were the applicant's brother's connections with the LTTE. (Errors in original; emphasis in original)

THE TRIBUNAL'S DECISION 9 The Tribunal began its assessment of the appellant's claims by considering his claim that he feared harm as the driver of a three-wheeler vehicle which had been commandeered by the LTTE. The Tribunal accepted "that there were altercations between the Army and rickshaw drivers in December 2005 which occurred in the context of increased protest, tension and violence which led to the breakdown of the ceasefire in 2006". The Tribunal also accepted "that a number of three-wheeler drivers and owners were shot" in 2006 and noted that those attacks appeared to have occurred in 2005 and 2006, but not more recently. Further, the Tribunal noted, from the media reports available to it, that the persons who shot the rickshaw drivers were not identified, nor did they indicate that the rickshaw drivers were killed as a result of their imputed association with the LTTE. Consequently, the Tribunal did not accept that the Sri Lankan Army suspected the appellant of supporting the LTTE in 2010 because he drove a three-wheeler vehicle during the ceasefire. Additionally, the Tribunal found that the appellant did not fall within any of the "risk profiles" identified by the United Nations High Commissioner for Refugees (UNHCR) which may give rise to an imputed LTTE association. 10 The Tribunal accepted the appellant's claims that he was interrogated on a number of occasions during 2006 and made to kneel in the sun. However, it did not accept that that treatment "creates a real chance or a real risk that the [appellant would] be harmed now or in the reasonably foreseeable future because of an imputed LTTE association". Further, the Tribunal did not accept that the appellant went into hiding in Vavuniya and Trincomalee because of this treatment, but it did accept that he was displaced to Vavuniya for six months in 2006, due to resumed fighting in the north, and that he subsequently lived openly in Trincomalee. 11 The appellant also claimed that he returned to Point Pedro in 2010 due to his mother's illness and that, upon his return, he was questioned by members of the Army, beaten and then released on the condition that he was to report every week. While the Tribunal was willing to accept that the appellant may have been questioned and he may have been beaten or mistreated during that questioning, it did not accept that, in the conditions prevailing in 2010, he would have been released if he had been suspected of involvement with the LTTE. For similar reasons, the Tribunal doubted that the Army would have required the appellant to report every week. 12 The Tribunal also accepted that members of the Army may have asked the appellant whether he had any involvement in any bomb attacks in 2006 as part of their inquiries into why he left Point Pedro. However, the Tribunal noted that the appellant's evidence before it about this questioning was "vague and non-specific and [that] he gave no details of any specific attack he was accused of being involved in". Consequently, as he was not arrested or detained, the Tribunal did not accept that the Army suspected the appellant was involved in a bomb blast in 2006. 13 In respect of the appellant's claims about his nephew, namely that he was pursued by members of the Army and died in a motorcycle accident, the Tribunal accepted that the Army may have questioned his nephew at a checkpoint in 2010. However, the Tribunal noted that the appellant was "somewhat vague about the reason for the questioning" and it did not accept that his nephew was questioned about his relationship with the LTTE because he was a rickshaw driver and nor did it accept that he was suspected of being an LTTE supporter in 2010. The Tribunal also did not accept that members of the Army questioned the appellant's nephew about the appellant in 2010. On this aspect, as the Tribunal noted, the appellant had given evidence that he had been questioned shortly before his nephew was questioned and, upon his release, he was able to pass through checkpoints on his return to Trincomalee without encountering any issue. The Tribunal did, however, accept that the appellant's nephew was killed in a motorcycle accident in 2010 and that this may have occurred after he failed to stop at a checkpoint or as he rode away from one. However, it did not accept that members of the Army had pursued the appellant's nephew in 2010 because he was imputed to be an LTTE supporter or because the LTTE had used his three-wheeler vehicle in 2006. 14 The Tribunal accepted that, if, in 2010, the appellant was asked to report in Point Pedro and he failed to do so, members of the Army may have gone to his home to inquire about him. However, the Tribunal did not accept that members of the Army searched for the appellant in 2012, nor did it accept that he was of interest to the Army in 2012 because he drove a three-wheeler vehicle in Point Pedro prior to 2006 or because he was questioned there in 2010. 15 Having regard to country information, the Tribunal did not accept that the appellant would "suffer discrimination or any other harm amounting to serious or significant harm on return to Sri Lanka because of his Tamil race". The Tribunal also did not accept that the appellant "faces a real chance or a real risk of serious or significant harm in Sri Lanka because his brother has been granted protection in Australia". 16 In a post-hearing submission, the appellant claimed that he was beaten and threatened upon his return to Sri Lanka from Thailand in 2001. The Tribunal did not accept this claim primarily because he did not mention it in his written statement or in his interview with the Minister's delegate or at the hearing when asked about any concerns as a failed asylum seeker. In respect of the appellant's claim that he feared harm as a failed asylum seeker, the Tribunal was "satisfied that [he would] not be subjected to any detention or interrogation on his return to Sri Lanka other than the standard questioning and procedures". The Tribunal did note that, given the appellant had left Sri Lanka illegally, he would likely "be arrested and charged with an offence under" the Immigrants and Emigrants Act 1948 (Sri Lanka) and that he would be held in remand for a short period of time and fined. However, the Tribunal did not accept that this would equate to a real risk of significant harm. 17 The Tribunal concluded that the appellant did not satisfy the criteria under s 36(2)(a) of the Act and that he was not a person to whom Australia owed protection obligations under s 36(2)(aa) of the Act.

THE PRIMARY JUDGMENT 18 The appellant's two grounds of review before the Federal Circuit Court raised the same issue, namely the Tribunal's treatment of the appellant's brother's alleged connection with the LTTE. The primary judge rejected both of those grounds. 19 In its original form, ground of appeal 1 was almost identical to ground of review 1 before the Federal Circuit Court. However, at the hearing of this appeal, the appellant sought leave to amend his notice of appeal to delete particular (g) to that ground of appeal and to abandon ground of appeal 2. That leave was granted. It can be seen from the remaining parts of ground of appeal 1 above (at [8]) that the main effect of these amendments was to excise from this appeal the claim relating to the brother's alleged LTTE connection. That being so, it would serve no purpose to detail how the primary judge dealt with that issue. 20 For the following reasons, the same outcome applies to the balance of ground of appeal 1. The essence of the contention advanced by the amended form of ground of appeal 1 is contained in particular (f) (see at [8] above). It is that, when it was conducting its review, the Tribunal failed to consider the cumulative effect of those aspects of the appellant's claims which it did accept. The primary judge noted this contention with respect to ground of review 1 (which, as noted above, is almost identical to ground of appeal 1) at [18]-[19] of her Honour's reasons, but then disposed of the whole of that ground (at [25]-[27]) based on her Honour's finding that "no claim squarely [arose] from the material before the [T]ribunal that the [appellant's] brother's connection with the LTTE … may separately or in conjunction with other factors cause the [appellant] to face a real chance of serious or significant harm". As a consequence, the primary judge did not deal with the cumulative effect contention referred to above. Accordingly, no purpose will be served by reviewing any of the primary judge's reasons.

THE CONTENTIONS 21 In his written submissions concerning ground of appeal 1, the appellant claimed that the Tribunal fell into jurisdictional error by failing to "consider each necessary and relevant consideration and … integer" (footnote omitted) of his claims and the material questions of fact which, he claimed, were squarely raised by them. As is already noted above, the appellant contended that those integers comprised the aspects of his claims which the Tribunal had accepted, as set out in the remaining particulars to this ground of appeal (see at [8] above) and the cumulative effect of those accepted claims as they relate to the treatment he may be subjected to upon his return to Sri Lanka and whether there was "a real chance that [he] may have a real chance of longer detention, or may suffer other serious harm". The appellant also contended that, while the Tribunal did not accept that he was imputed with any LTTE association before he left Sri Lanka, it should have considered whether he would suffer the serious harm it had accepted had occurred in the past upon his return to Sri Lanka after a four year absence. 22 In his submissions, the Minister highlighted those aspects of the appellant's claims that the Tribunal did not accept and contended that "[l]ooking at the matter 'cumulatively' does not displace the clear view of the Tribunal that the [a]ppellant is not perceived by the security forces to be associated with the LTTE and does not face a serious risk of harm arising from such an association". Furthermore, the Minister contended that the appellant's present claim with regard to the cumulative effect of his accepted claims was not articulated before the Tribunal and that claim did not clearly arise from the materials before it. With respect to the appellant's contention that the Tribunal did not consider whether he might suffer serious harm as a result of his absence from Sri Lanka, as happened when he returned there in 2010 after a four year absence, the Minister reiterated his contention that this argument was not raised before the Tribunal. In any event, he submitted that the Tribunal's conclusions about the Army's lack of suspicion of the appellant after his four year absence disposed of this argument. 23 The Minister also provided supplementary submissions limited to an issue which arose during the hearing concerning the Tribunal's treatment of protection claims as distinct from complementary protection claims. Relying on SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 per Roberson, Griffiths and Perry JJ at [32]-[34] (SZSHK) and SZSGA v Minister for Immigration, Multicultural and Indigenous Affairs and Citizenship [2013] FCA 774 per Robertson J at [54]-[58] (SZSGA), the Minister contended that the "Tribunal is entitled to consider an applicant's complementary protection claims simply by reference to its previous findings concerning the applicant's status as a refugee". The Minister did, however, acknowledge the following exceptions: (a) "whether an applicant makes claims under s 36(2)(aa), entirely independent of s 36(2)(a) (cf. SZSGA at [54])" (emphasis in original); and (b) "whether a Tribunal implicitly has applied s 36(2)(aa) … in its earlier findings (cf. SZSHK at [35]; SZGSA [sic SZSGA] at [55] and [57])". 24 Nonetheless, the Minister contended that these exceptions did not arise in this matter because "the [a]ppellant did not rely upon the alleged events in 2010 as constituting a claim under s 36(2)(aa)", independent of his claims under s 36(2)(a). Furthermore, so he contended, the Tribunal had used the language of s 36(2)(aa) when it dealt with the appellant's claims and, as such, was able to rely on its earlier findings when concluding that the appellant did not satisfy the requirements of s 36(2)(aa). 25 In the appellant's supplementary submissions on the same issue, he contended that "it should not readily be inferred that the Tribunal 'implicitly … applied s 36(2)(aa) by … adopting the language of s 36(2)(aa) in its earier [sic earlier] findings'" (emphasis in original; footnote omitted).

CONSIDERATION 26 In its review of a delegate's decision with respect to a protection visa application, the Tribunal is obligated, among other things, to "deal with claims that are expressly articulated and those which clearly arise from the materials before [it]". The latter obligation "includes a claim raised by the evidence and contentions before the Tribunal which if resolved in one way would or could be dispositive of the review" (see DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at [19] per Reeves, Rangiah and Colvin JJ, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [60]-[63] per Black CJ, French and Selway JJ). 27 In NABE, the Court approved the view expressed by Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120 at [19] that such a claim "must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it". The Court added that "the use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal" (see NABE at [58]). To similar effect, in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], Allsop J (as his Honour then was) expressed the view that an unarticulated claim must arise "tolerably clearly" from the materials before the Tribunal and it was not required to "undertake an independent analytical exercise" of those materials to discover whether such an unarticulated claim existed. This passage was approved by the Full Court in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287; [2013] FCAFC 161 at [70] per Mansfield, Gilmour and Foster JJ. 28 The appellant did not contend that he articulated a cumulative effect claim before the Tribunal as outlined in particular (f) to this ground of appeal. Instead, he contended that, once the Tribunal decided to accept him on those aspects of his claims as identified in particulars (a) to (e) inclusive, such a claim should have been apparent from the materials before it. This contention cannot be accepted. It goes well beyond the Tribunal's review obligations as outlined above. It involves a strained construction of the "creative activity" the Court rejected in NABE. Moreover, such an exercise would not salvage any of the appellant's claims because those aspects of them that the Tribunal did not accept were fatal to those claims. This is illustrated by the fact, which the appellant's counsel accepted, that the Tribunal did not accept that the appellant had an imputed profile with the LTTE at any time and in any form. 29 The appellant's additional contention about the Tribunal's failure to consider the likelihood of him suffering harm on return to Sri Lanka after an absence of some years must also be rejected. First, such a claim was not raised in those terms before the Tribunal and nor is it mentioned in the particulars to this ground of appeal. Secondly, and in any event, as the Minister has correctly pointed out in his submissions, the Tribunal coincidentally disposed of this claim with its conclusions about the Army's lack of suspicion of the appellant after his earlier four year absence. 30 Finally, I do not consider the issue which arose during the hearing of this appeal concerning the Tribunal's treatment of the appellant's complementary protection claims avails him. First, self-evidently, this issue was not raised before the primary judge and it is not mentioned in this ground of appeal. Secondly, and in any event, I consider the Minister is correct in his submissions (at [24] above) that neither of the exceptions identified in either SZSGA or SZSHK (see at [23] above) applied in this matter and that the Tribunal properly dealt with the appellant's complementary protection claims.

CONCLUSION 31 For these reasons, there is no merit in the appellant's sole ground of appeal and his appeal must therefore be dismissed. While the primary judge did not, for the reasons expressed above (at [20]), deal directly with the matters raised by this ground of appeal, since there is no merit in it, it necessarily follows that her Honour's decision to dismiss the appellant's application for judicial review was not affected by error. 32 The orders will be that:

1. The notice of appeal filed on 17 September 2018, as amended, is dismissed.
2. The appellant is to pay the first respondent's costs of and incidental to this appeal to be taxed failing agreement. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.