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[2019] FCA 1834
Federal Court of Australia
2019-11-08
Jackson J
Original judgment source is linked above.
The application for leave to amend to raise a new point on appeal to this court 24 The appellant was unrepresented at the time that he filed his notice of appeal. The sole ground in the notice is as follows (errors in original): The Primary Judge didn't adequately examine the evident that was placed there by didn't exercise the Courts proper Jurisdiction. 25 The appellant subsequently secured legal representation. His solicitor filed a draft notice of appeal seeking to raise the following ground: The Tribunal fell into a jurisdictional error by failing to consider a relevant issue. Particulars By describing the abduction as an isolated incident, the Tribunal misunderstood the well-founded fear test and the applicable law per WZAPN. 26 It was, with respect, difficult to ascertain from the ground of appeal and from 'draft submissions' filed on the appellant's behalf exactly what point the appellant now sought to raise. However in the course of oral submissions it became clearer that the point was that the Tribunal had erred in failing to make what, according to the written submissions, was 'the qualitative assessment and not the quantitative assessment that was essential in a refugee assessment process.' The need to make a qualitative assessment was said to have been established in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610. 27 The Minister objected to leave to amend in these terms, on the grounds that this was not a point raised before the primary judge, there was no adequate explanation as to why it was not raised, and the point lacks merit. 28 In WZAPN the High Court considered the interaction between Art 1A(2) of the Convention and s 91R of the Act. The Court rejected an argument that s 91R(2)(a) indicates that a threat to liberty is to be regarded, of itself and without more, as an instance of serious harm (see [41]-[42]). The plurality held that, to the contrary, whether a risk to loss of liberty constitutes 'serious harm' for the purposes of s 91R(1)(b) requires a qualitative judgment, including an evaluation of the nature and gravity of the loss of liberty (at [45]). 29 Thus the appellant here seeks leave to contend that, on a proper interpretation and application of s 91R(2)(a), the alleged abduction in 2011 was an event which indicated that the appellant faced a threat to his liberty if he were to return to Sri Lanka, and therefore faced serious harm. The appellant argues that in dismissing the alleged abduction as an 'isolated incident' in the passage from its reasons quoted above, the Tribunal failed to make the qualitative judgment required by WZAPN. Instead, it made a 'quantitative assessment', by disregarding the abduction, because it had only happened once. 30 The appellant seeks leave to argue that it should be inferred from the Tribunal's reasons that it applied the wrong test, after making the assumption that the abduction did take place as the appellant said it did. If that is correct, the Tribunal's decision cannot be upheld on the basis of the alternative independent finding that if the abduction did occur, it was an isolated incident that did not give rise to a real chance of serious harm in the foreseeable future.
Leave to appeal on the new point - consideration 31 In ANL15 v Minister for Immigration and Border Protection [2019] FCA 1365 at [12], drawing on Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510, I summarised the considerations that are relevant to an application to raise a point on appeal that was not in issue before the primary judge. The question is whether it is expedient in the interests of justice to grant leave to raise the new point. In light of the importance of ensuring that a trial is not treated as a mere preliminary skirmish, it will usually be necessary for the appellant to have a satisfactory explanation of why the point was not raised below. The merits of the point will also be relevant; it is difficult to conceive of a situation where it is in the interests of justice to grant leave to argue a point that is bound to fail. 32 It might be thought that the appellant here has a ready explanation as to why he did not raise the Tribunal's approach to the question of 'significant harm' with the primary judge. He had no legal representation in the Federal Circuit Court and thus it would be unsurprising if he did not appreciate that the point may have been available. However his counsel did not advance that explanation, saying that he was not involved at the time and therefore did not know. Counsel for the Minister nevertheless accepted that the lack of an explanation was not the strongest reason to refuse leave to amend. Nor did she claim that raising the point would prejudice the Minister. She placed most weight on what she said was a lack of merit in the point. 33 For the following reasons, I agree with the Minister that the new point has insufficient merit for it to be in the interests of justice to give the appellant leave to raise it in this court. 34 It is correct to say that WZAPN confirmed that in any application of s 91R(2)(a), a qualitative approach must be taken. It is, however, important to understand what that means. It does not follow from WZAPN that it was incorrect for the Tribunal to treat the fact that there was only one instance of harm, as a basis for concluding that there was not a real chance of serious harm in the foreseeable future. 35 WZAPN was decided in the context where the function of s 91R was to exclude certain claims to protection which would otherwise qualify on the interpretation of the Convention that was then thought to prevail: see the legislative history recounted by Gageler J in WZAPN at [90]-[91]. The argument put to the High Court was that in specifying 'a threat to the person's life or liberty' as an instance of 'serious harm' capable of amounting to persecution under Art 1A of the Convention, it followed from s 91R(2)(a) that a threat to liberty, without more, was sufficient to constitute serious harm. That was so irrespective of qualitative considerations such as how grievous the threatened loss of liberty was. For the purposes of s 91R(2)(a), there was no need to balance the likelihood of harm to the person against the gravity of the feared harm should likelihood become fact. Any risk of a loss of liberty would be 'serious harm' under s 91R: see WZAPN at [42]-[43], [47] (French CJ, Kiefel, Bell and Keane JJ). 36 The plurality rejected this argument in the following terms (at [45], Gageler J agreeing at [100]): To resolve the question before the Court, it is enough to say, in light of the collocation of threats to life and liberty in s 91R(2)(a), that the question of whether a risk of the loss of liberty constitutes 'serious harm' for the purposes of s 91R(1)(b) requires a qualitative judgment. This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty. Whether the likelihood of detention in any case rises to the level of serious harm instanced by s 91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention. 37 Unlike the submissions put by the appellant here, the High Court drew no distinction between a 'qualitative' assessment of the threat of loss of liberty which was required to be made under s 91R(2)(a) and a 'quantitative' assessment of that threat. At [41] the plurality did, however, endorse the conclusion that Gleeson CJ and Kirby J expressed in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60; (2006) 233 CLR 1 at [1]-[3], that in the context of s 91R(2)(a) the word 'threat' referred to 'likelihood of harm', so that '[t]he decision-maker is to decide the risk of future harm'. Thus the exercise, according to the plurality (at [41]) may require the decision-maker to 'balance the likelihood of harm to the person against the gravity of the feared harm to the person should likelihood become fact'. 38 So, while it may be accepted that WZAPN establishes that in applying s 91R (and now, s 5J(4) and s 5J(5)), the decision-maker is required to make a qualitative assessment, it does not follow that the Tribunal fell into error when it discounted the abduction of the appellant in 2011 as a basis for finding that he faced a real chance of serious harm in the foreseeable future. It is true that the Tribunal might have applied the wrong test if it had adopted a reasoning process relying on probabilities, causing it to 'look to statistics or projections divorced from the fear as articulated by the applicant': AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 at [50] and see also [46]. That might be a 'quantitative' approach, to use the wording of the appellant's submissions, which could result in error. But on a fair reading of the Tribunal's reasons in the present case, that is not what it did here. 39 I have summarised the Tribunal's reasons and set out the key passage in which it set out its conclusions. That includes the conclusion reached in the alternative which the appellant now criticises, that even if the Tribunal had accepted the account of the appellant's abduction, it would appear to be an isolated incident and the appellant did not face a real chance of serious harm in the future. 40 That conclusion does not display any 'quantitative' approach as contended by the appellant. The Tribunal does not say that one abduction, or one incident, is never enough to establish a real chance of serious harm. Nor can that be implied from its reasoning. Rather, the basis for the Tribunal's conclusion in the alternative is a qualitative assessment of the likelihood that the incident would be repeated. It found that was unlikely, and expressed that in its finding of fact that the abduction, if it did occur, was an isolated incident. 41 That finding was open to the Tribunal. The appellant had said in his entry interview that it was the only incident like that which had happened to him. The Tribunal reasoned from the fact that it was an isolated incident, to a conclusion that the appellant did not face a real chance of persecution; implicitly, a conclusion that an incident of that kind would not happen again. 42 There was a large number of contextual matters which meant that this line of reasoning was open to the Tribunal. The appellant did not claim to be politically active or to have actual ties with the LTTE. The Tribunal seemed to accept the finding that the delegate had made, to the effect that the appellant had travelled to and from Jaffna for many years previously without meeting any difficulties. The reason he gave for being of interest to the authorities - that he travelled to Jaffna frequently as a jeweller - was not convincing, so it was open to the Tribunal to give that little weight. The appellant did not know who abducted him. He did not know why he had been targeted or why he was abducted. He did not make a police report, because he would not have been able to identify his abductors. He had not been personally threatened on any other occasion. He did not know what would have happened if he had stayed in Sri Lanka. He speculated that the reason why he was targeted might have been because people were jealous about his house; that does not lend itself to being a Convention reason for persecution, at least without more context, which the appellant did not give. The alleged inquiries about him after the abduction were made of other people; he did not claim to have witnessed himself any interest on the part of the authorities. He did not know who was making those inquiries; the suggestion that it was people associated with his abductors was a presumption on his part. After the alleged incident he continued with his daily and weekly routine, including travel outside his village. The country information indicated that the frequency of 'white van' abductions was in decline after the change of government in early 2015. 43 All of these matters indicate that there was ample justification for the Tribunal's finding that if the appellant had been abducted, it was an isolated incident. To use the terminology of the appellant's counsel, they provided a 'qualitative' justification. There is no foundation for the claim that it was the mere fact that there was only one incident that swayed the Tribunal. 44 Under s 430(1) of the Act, the Tribunal was obliged to set out the reasons for the decision and the findings on any material fact. The passage from its decision which I have quoted fulfils those obligations. The Tribunal was not required to explicitly draw the logical link between its finding in the alternative, and the numerous contextual matters described elsewhere in its reasons which supported that finding. To require it to do so would be to construe the reasons 'minutely and finely with an eye keenly attuned to the perception of error', contrary to the caution expressed in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and approved in Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Rather, on a fair reading of the Tribunal's reasons as a whole I infer that its conclusion reflected a qualitative assessment of the risk or threat of serious harm in the future based on the numerous contextual matters which I have described and which it set out in its reasons.
Conclusion 45 The Tribunal did not fall into error in making its finding that even if the appellant had been abducted in 2011, that was an isolated incident which did not give rise to a real chance of serious harm in the foreseeable future. The primary judge was correct to rely on that finding as a basis for the Tribunal's decision that was independent of its error in the application of s 424A. The appellant did not submit that the error concerning s 424A affected the Tribunal's reasoning in relation to the finding that the alleged abduction was an isolated incident. 46 Leave to amend to raise the proposed new ground of appeal is refused, chiefly because it is without merit, but also there has been no explanation advanced as to why it was not raised with the primary judge. 47 Counsel for the appellant accepted that if his client did not succeed on the new point, he could not succeed at all. The appeal is dismissed, with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.
BPQ15
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
The reasons of the delegate and of the Tribunal 3 The decision of the delegate of the Minister to refuse the visa was dated 18 September 2013. The delegate's reasons for refusing the protection visa application were based, in part, on concerns about the appellant's credibility and the credibility of his account of the abduction. While there were numerous reports of so called 'white van' abductions happening in Sri Lanka at the relevant time, the delegate did not accept that the appellant fitted the profile of persons who were normally abducted in that way. She found that the appellant did not have a well-founded fear of persecution based on his imputed political opinion or race, or as a person suspected of links with the LTTE. 4 The appellant sought review in the Tribunal. There was a hearing on 16 January 2015, and on 17 July 2015 the Tribunal decided to affirm the delegate's decision and published written reasons. 5 The Tribunal commenced its reasons by stating the relevant law, including the criteria for a protection visa in s 36(2) of the Migration Act 1958 (Cth) (the Act), the definition of a refugee in Art 1A(2) of the Convention Relating to the Status of Refugees (1951) as Amended by the Protocol Relating to the Status of Refugees (1967) (the Convention) and, relevantly, the fact that s 91R and s 91S of the Act 'qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person'. The Tribunal expanded on its reference to s 91R by noting that under it, 'persecution must involve "serious harm" to the applicant (s 91R(1)(b))' and that examples of serious harm were set out in s 91R(2). 6 Those provisions are relevant to the present appeal, so it is convenient to set them out here. Section 36(2)(a) provided that a criterion for the grant of a protection visa was that the applicant was a non-citizen to whom the Minister is satisfied Australia had protection obligations under the Convention. As a party to the Convention, Australia has protection obligations in respect of persons who are classed as refugees. Article 1A(2) of the Convention relevantly defines a refugee as a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it … 7 Section 91R of the Act modified the application of Art 1A(2) as follows (or, as the explanatory memorandum in relation to the relevant amending bill would have it, restored it to its proper interpretation): (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; … And see Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum, page 2 [1]. See also Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001, p 30421. 8 Section 91R was repealed with effect from 18 April 2015, but its provisions are now substantially replicated in s 5J(4), s 5J(5) and s 5J(6), albeit without direct reference to the Convention, as that has also been removed from the Act. Section 5J only applied to any application for a protection visa made on or after 18 April 2015 (Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Part 4, Item 28 of Schedule 5) so the Tribunal was required to apply s 91R to the decision under review: see Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 367 ALR 695 at [14]. 9 The Tribunal noted that the persecution needed to have an official quality 'in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality'. The Tribunal also noted that the persecution must be for one of the reasons listed in Art 1A(2), that is a 'Convention reason', and that under s 91R(1)(a) the Convention reason or reasons must constitute at least the essential and significant motivation for the persecution feared. The Tribunal described other aspects of the law concerning when the Minister may be satisfied that an applicant is someone in respect of whom Australia has protection obligations. The appellant does not allege error in any of these statements of the law. 10 The Tribunal summarised the appellant's claims to protection as being that he suffered persecution because of his presumed links with and support of the LTTE. The appellant claimed that repeated trips to Jaffna for reasons related to his work as a jeweller raised the suspicions of the authorities or others working at their behest. He relied on the alleged abduction in 2011 and said that after that, people asked neighbours and co-workers about him. He fled Sri Lanka over concerns as to what would befall him next. 11 The Tribunal set out a long quote from the transcript of the appellant's entry interview in which he described the alleged abduction and was asked questions about it. In the account of the abduction, the appellant said that his kidnappers showed him some photos and (as best one can tell) asked him who the people in the photos were. At one point, the appellant said that he could not live in what was then his home village because of the attack and its aftermath, and went on to suggest that a motive for the attack may have been, 'We were living in a normal house and a lot of people have jealousy over us. They tell the other party.' The passage quoted from the interview included the following exchange: Why is it dangerous in that area? The photo they showed me is all Tamil people. Why they have assaulted/beaten me, they haven't told me. Is it for getting money from me? I do not know anything. They have taken a lot of money from people like this. Who were the people who abducted you? I do not know exactly. They just pulled me inside the van and blindfolded me. Why were they interested in what you thought about the photo? I think because we have been visiting that area earlier and that that [sic] I have met or seen some of these people in the photo. They have asked me the question, 'have you seen these people in the area?' Who were the people in the photo? I don't know. Why did they beat you? They wanted me to tell them who was in the photo. 'Who are these people? Tell.' And they have done this to many people. Have any other incidents like this happen to you? No, this is the only one I had. What would have happened if you stayed in Sri Lanka? Very difficult to tell. Can't guess. After I was abducted, I never slept in my house. The appellant also said (a little later on) 'Only Tamil people are having this problem.' 12 The Tribunal also quoted extensively from a statutory declaration that the appellant made in support of his visa application. He had legal assistance to prepare the declaration. It said that he feared that if he returned to Sri Lanka he would suffer persecution as defined in the Convention 'due to my ethnicity, a lack of state protection because of my ethnicity, and my imputed political opinion.' 13 The declaration then provided a detailed account of the alleged abduction in July 2011. The appellant claimed that on the way to a game of cricket, or (in a different interview) on the way back, he was dragged inside a white van and blindfolded. He was shown photographs of some people and asked whether he knew anyone in the photos. He did not know the people. He said he was beaten four or five times in all. He was released at 5.00 am the next day. 14 The statutory declaration indicated that a week or so after the incident, 'I continued with my normal routine of going home during the weekends as before.' The appellant learned that inquiries had been made of his neighbours about him in his absence, and he did not know who was making the inquiries 'but I presumed they must have been associated with my abductors or were the abductors.' Further: I do not know why I was kidnapped and not knowing the reason for the kidnap worries me… I fear that they have decided because I am Tamil, visit Jaffna frequently for work and have a significant scar that they think I am a supporter of the paramilitary groups or ex-member … The persecution I have suffered has been perpetrated I believe by the agents of the government and is known to the government which is either unwilling or unable to prevent the persecution. 15 The Tribunal then summarised the delegate's conclusions as follows: However, the delegate did not accept the applicant's account of the abduction. The delegate noted that the applicant did not fit the profile of persons normally the subject of 'white van' abductions. She noted that on his own evidence, he had travelled back and forth to Jaffna over a number of years, but that he had not previously met with any difficulties. Despite his twice weekly travel between Colombo and his village, on his own evidence, he had not experienced any difficulties either before or after the abduction. Following the abduction, on his own evidence, he experienced no further problems over the subsequent year before he left the country, beyond enquiries made about him to neighbours and adjacent shop owners. The delegate did not accept that the applicant's appendix surgical scar raised his profile or was likely to raise his profile in the future. She noted that neither the applicant nor his family members were subsequently threated [sic] or contacted. 16 The Tribunal went on to record various things that the appellant said at the hearing before it. It is relevant to this appeal to note that the appellant said that he refused to make a police report about the incident, giving as one reason that he would not have been able to identify his abductors. 17 The Tribunal's reasons then record that in the hearing, the Tribunal referred to the concerns that the delegate had expressed, as summarised above. At that point, according to the Tribunal, the appellant: … reiterated that he did not know why he had been targeted - jealousy over the family's nice house, frequent trips to Jaffna, his work were all raised as possibilities. She [the applicant's migration representative at the hearing] reiterated that there was no ransom demand so a conclusion could be drawn that it was political. 18 The Tribunal then referred in detail to country information dating from between 2010, after the end of the civil conflict in Sri Lanka, up to February 2015 (shortly after the election of the Sirisena government), the tenor of which was that Tamils of a certain profile, including those suspected of links with the LTTE, did face a risk of persecution including abduction, interrogation and torture. 19 The Tribunal also referred to country information under the heading 'White vans'. This indicated that abductions involving white vans continued to be relatively frequent as late as 2013, and that the victims were disproportionately Tamils. But the Tribunal also referred to other information about Sri Lanka's 'white van culture', which suggested as at 2015 that the blame for it could be placed squarely on the shoulders of the previous regime. There was country information indicating that there had been a marked decline in the use of '"white van" intimidation' since the Sirisena government won election in early 2015. 20 After this survey of the country information the Tribunal stated its conclusions and findings as to why it affirmed the delegate's decision. It referred to a number of inconsistencies in the appellant's various accounts of the alleged abduction and its aftermath. It is not necessary to go into detail about those. The Tribunal reached the following conclusions: 85. Like the delegate, I accept that 'white van' abductions were a reasonably common occurrence for many years, including in 2011. The country information supports this. However, the country information also indicates profiles of persons abducted. Like the delegate, I do not accept that the applicant fits this profile. 86. It is true that the applicant has said that he did not know why he was abducted or by whom, but he appears to be asking the Tribunal to draw the inference that he was abducted because of his ethnicity and his frequent travel to Jaffna and that he was targeted for abduction because his family was reasonably well off. 87. He also appears to be asking the Tribunal to draw the inference that he was abducted by state authorities or someone acting at their behest. 88. In looking at the alleged abduction in light of his many trips to and from Jaffna and to and from Colombo, I am of the view that if he were truly of interest to the authorities, he would have been questioned earlier than the claimed incident in 2011 and/or subsequent to the claimed incident in 2011. But on his evidence, he has not been so questioned. 89. Neither do I accept the submission of the representative that most white van abductions occurred at homes or workplaces. The applicant does not assert that his white van abduction occurred at the home or the workplace, but on the road. Country information indicates that they occurred on the road, as well as at home or at work. 90. I do not accept the submission that he faced no subsequent problems because he was careful after the abduction. On his evidence, he continued his routine travelling between Colombo and his village twice a week. He did not change his workplace, go into hiding in another area or even, apparently, vary his routine. 91. Even if I were to accept the account of the applicant's abduction, which I do not, it would appear to be an isolated incident and I would not find that the applicant faced a real chance of serious harm in the foreseeable future. 21 The Tribunal then went on to consider the appellant's claim to fear persecution as a returning failed asylum seeker and also considered the question of complementary protection by reference to those claims. The Tribunal affirmed the decision of the delegate to refuse a protection visa to the appellant.
[2015] HCA 22
(1993) 43 FCR 280
(2019) 367 ALR 695
(2015) 254 CLR 610
(1996) 185 CLR 259
(2017) 250 FCR 510
(2006) 233 CLR 1